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Jersey takes a step closer to modern mental capacity law

04 October 2018

The Capacity and Self Determination (Jersey) Law 2016 (the 'new Law'), which came into force on 1 October 2018, radically alters the way in which mental health issues are dealt with in Jersey.

The new Law has been developed to take into account modern standards in clinical practice, as well as current legislation and case law in both Jersey and England. It aims to prioritise the autonomy and best interests of vulnerable members of society in decision making on their behalf.

The new Law enables Jersey residents to put in place legally binding arrangements for the future of their finances and welfare should they become unable to handle decision making for themselves. Emotionally difficult as it may be to envisage, and plan for, a time of diminished capacity, putting such arrangements in place can ensure that a person's wishes are respected and ease the burden of responsibility on their loved ones, in a similar way to making a will or considering arrangements for one's death. The new Law provides clarity and peace of mind in such circumstances.

The highlights of the new Law are as follows: 

Delegates (replace Curators)
Previously, when a Jersey resident lost capacity to deal with their own financial affairs, the Royal Court appointed a Curator to act on their behalf. Curatorship, a customary law office, was last refreshed by the legislature forty eight years ago when the regime was codified in part by the Mental Health (Jersey) Law 1969. Curators needed to account to the Judicial Greffe each year for all income and outgoings and needed to ask permission of the Court to spend more than £2,000 per year (or 10% of income) on items such as holidays or furniture. This can be particularly onerous and intrusive for spouses of individuals lacking capacity.

The new Law replaces the current Curatorship regime with the appointment of Delegates by the Royal Court. The extent of authority of the Delegate can be stipulated by the Royal Court at the time of appointment, allowing for extra flexibility where desirable (such as for spouses) or providing tailor made limitations if necessary, given the particular circumstances of the person and how best to serve their interests.

Lasting Powers of Attorney
For the first time, a Jersey resident is able to plan for the risk of future mental incapacity by granting Lasting Powers of Attorney ('LPA') for health and welfare and also property and financial affairs. Jersey previously had no enduring or lasting powers of attorney. The new regime for Lasting Powers empowers Jersey residents to plan ahead and afford flexibility to prescribe how they would wish for their affairs to be organised should they become unable to act for themselves.

The States Assembly expressed the intention that all Jersey residents would create LPAs and that the Jersey version of the instruments would be much simpler than their UK counterpart to enable them to be created without the assistance of a lawyer. However, whilst simplification is to be welcomed, it must not be at the cost of protecting against abuses of LPAs. The use of lawyers in the creation of LPAs is an additional safeguard against the risk of abuse.

Overarching principles
There are five principles which underlie the operation of the new Law, designed to guide the decision maker in practice. They are similar to the principles of the English Mental Capacity Act 2005 and can be summarised as follows:

  • A person must be assumed to have capacity unless it is established that he lacks capacity;
  • A person is not to be treated as unable to make a decision unless all practicable steps to help him make the decision have been taken without success;
  • A person is not to be treated as unable to make a decision merely because he makes an unwise decision;
  • An act done or decision made, under the new Law, or on behalf of a person who lacks capacity, must be done, or made, in his best interests;
  • Before the act is done, or the decision made, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person's rights and freedoms.

These principles underline the ethos of the new Law of self-determination; supporting people as far as possible to live autonomously.

A statutory test for mental capacity and best interest decisions
The new Law recognises that capacity is not an all or nothing matter and can be affected by both timing and current circumstances. In response to this, the legislation contains a helpful capacity checklist whereby a person will be considered unable to make a specific decision if, at the relevant time, he is unable:

  • To understand information relevant to the decision;
  • To retain the information;
  • To use or weigh that information as part of the decision-making process; or
  • To communicate the decision.

If it is established that a particular decision cannot be made by a person for himself, then the person with responsibility for making the decision must have regard to the best interests considerations laid out in the new Law.

Statutory wills
For the first time, statutory wills are available in Jersey. The Court is able to direct that a will may be executed on behalf of a person lacking capacity for all their estate, except immovable estate (such as property) situated outside of the Island. This development is to be welcomed to counter the harsh consequences for families of any failure to execute a will before a loss of capacity or to make for a more equitable distribution of a person's estate than the laws of intestacy (when no will has been made) would otherwise allow. Given shifting trends away from the traditional nuclear family toward more blended families, coupled with the increasing mobility of people around the globe, such measures are a welcome addition to Jersey legislation.

The new Law is a substantial piece of legislation and its implementation on 1 October 2018 is a positive development and an essential stride towards protecting the vulnerable amongst the Island's growing population and those who support them.

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