08 March 2022
The Capacity (Bailiwick of Guernsey) Law, 2020 (The "Capacity Law") which has been in the pipeline for some time, will finally come into force in April this year if States members give it the final seal of approval in March.
The Capacity Law, which was approved by the States of Deliberation in April 2020, will introduce LPAs, which already exist in England and Wales and in Jersey, to allow a person (with capacity) (the "Grantor") to appoint an attorney (the "Attorney") to manage the Grantor's affairs should they no longer have mental capacity. When relevant time comes, the Attorney can take decisions relating to the Grantor's health and welfare, and/or property and financial matters. The Capacity Law has been influenced by the provisions of the English Mental Capacity Act of 2005. An LPA will only be valid if the Grantor is capable of understanding its nature and effect at the time the power is given. Currently, under an “ordinary” Power of Attorney, a Power of Attorney will cease to be in force once the person who has made the Power of Attorney loses his or her mental capacity. The introduction of LPAs will give islanders an effective solution to plan for their future in advance, as LPAs are very flexible. Please see our previous briefing
In August 2021 the Committee for Health & Social Care announced plans for the implementation of the Capacity Law in several phases with emphasis being placed on the introduction of LPAs. Assuming the Capacity (Lasting Powers of Attorney) (Bailiwick of Guernsey) Ordinance, 2022 (the "Ordinance"), which sets out the process for the creation of LPAs, is passed on 30 March 2022, individuals will be able to make LPAs from 1 of April 2022. The Capacity Law envisages two kinds of LPAs: the first in respect of both ‘health and welfare’ matters and the second relating to 'property and financial affairs’. The Ordinance also sets out the proposed process of registration through Her Majesty’s Greffier, together with defining and describing the requirements in a number of key areas and the safeguards intended to protect the Grantors and their Attorneys in the Bailiwick context. It is intended that these procedures will be supported by a Code of Practice and relevant forms, the drafts of which are in the pipeline.
Implementation of an LPA
There is no need for an Advocate to prepare and register a LPA, but our team at Bedell Cristin is ready to guide our clients through the implementation process and address any questions which they may have.
The application form for registering LPAs will be available to be downloaded from the Royal Court website www.guernseyroyalcourt.gg, or available for collection from the Greffe. The completed forms would need to be taken to the Greffe for registration (by appointment only). The Royal Court will charge a fee of £80 for the registration of a single LPA. For the registration of both a Health and Welfare and Property and Financial Affairs LPAs at the same time, the fee will be £100. We understand that further information will be added to the Royal Court website in the period between the States considering the Ordinance and the Ordinance coming into force.