ROYAL COURT OF JERSEY
RC22/05
THE CAPACITY AND SELF-DETERMINATION (JERSEY) LAW 2016 (“the Law”)
This
practice direction sets out (1) the witnessing requirements of a lasting power of
attorney (“LPA”) where the donor is unable to sign the LPA themselves; and (2)
how to make changes to, or cancel, an existing LPA.
Index
1.
Where the donor has
made a ‘mark’ rather than a signature in front of the witness.
2.
Where a person has
signed on the behalf of the donor
3.
Making changes to an
LPA
(i)
If a donor wishes to
remove one of their attorneys (a partial revocation)
(ii)
If a donor wishes to
add another attorney or make a material change to an LPA
4.
Revoke (cancel) an LPA
5.
Other ways an LPA can
end
6.
If an attorney’s
details change
7.
If an attorney dies
8.
If a donor changes
address
9.
When a donor dies
Definition
The term “witness” throughout this practice
direction means a person described at Article 3(a) to (j) of the Capacity and Self-Determination (Miscellaneous Provisions
and Prescribed Fees and Forms) (Jersey) Order 2018.
1.
Where the donor has made a ‘mark’ rather than a signature
in front of their witness.
The
witness should write the following wording in manuscript beneath the donor’s mark.
“I,
[name of witness], certify that [Mr/Mrs X] appeared before me and declared that
[he/she] is [unable to sign/does not know how to sign] their name as donor of
this Lasting Power of Attorney application.
I
confirm that the [mark] in the donor’s signature box above was made before me
by [Mr/Mrs X].
Witness
name
Date”
2.
Where a person has signed on behalf of the donor.
(i)
An LPA shall be valid
when it has not been signed by the donor if:
(a)
the donor declared in
the presence of their witness that, being physically incapacitated to sign the LPA
themselves, the donor wishes the LPA to be signed by another person on their behalf;
(b)
the declaration by the
donor and the date it was made are recorded on the face of the LPA;
(c)
the LPA was discussed
with the donor in the presence of the person signing the LPA on behalf of the
donor and their witness; and
(d)
after the LPA was discussed
with the donor, it was signed by some other person on the donor’s behalf in the
presence of the donor’s witness and that witness put their signature to the LPA
in the presence of the donor and that other person.
(ii)
The witness should
write the following attestation in manuscript on the donor’s signature page.
“I, [name of witness], certify that [Mr/Mrs Donor]
appeared before me and declared that [he/she] is unable to sign [his/her] name
as donor of this Lasting Power of Attorney application. [He/she] further declared that [he/she]
wished for [Mr/Mrs X] to sign the Lasting Power of Attorney application on [his/her]
behalf.
The LPA was discussed with the
donor in front of myself and [Mr/Mrs X].
I then watched [Mr/Mrs X] sign the LPA application on behalf of [Mr/Mrs
Donor], [his/her] having confirmed that [he/she] was satisfied with its
contents.
Witness name
Date”
(iii)
A person shall not be
competent to sign an LPA on behalf of a donor unless that person has the
capacity to execute a valid LPA of their own.
3.
Making
changes to an LPA
A donor can
ask the Judicial Greffe to change their LPA if it has been registered and they
still have capacity to make decisions for themselves.
(i)
If
a donor wishes to remove one of their attorneys (a partial revocation)
(a)
Where a donor wishes to
remove one of their attorneys and where this change will not affect any other
aspect of the LPA, including the decision-making powers, they should send the
Probate and Protection Division of the Judicial Greffe an instrument of partial
revocation.
(b)
The following is the
wording for the instrument of partial revocation.
“This instrument of
partial revocation is made by [donor’s name] of [donor’s address].
1.
I
granted a lasting power of attorney for property and affairs/health and welfare
[delete as appropriate] registered with the Judicial Greffe on [date on
which the LPA was registered] appointing [name of first attorney] of [address
of first attorney]; [name of second attorney] of [address of second attorney];
and [name of third attorney] of [address of third attorney] to act as my
attorney(s). [delete as appropriate]
2.
I
hereby revoke [attorney’s name that you are revoking] ONLY from the lasting
power of attorney and the authority granted to [him/her].
3.
In
all other respects I reaffirm the provisions of the lasting power of attorney.
I enclose:
(i) a copy of my
communication with [attorney’s name that you are revoking] informing [him/her]
that I intend to apply or have applied to the Royal Court to revoke their
appointment as my attorney; and
(ii) my original lasting
power of attorney for property and affairs/health and welfare [delete as
appropriate] together with certified true copies of the lasting power
attorney [if applicable].
Signed [donor’s signature]
Date signed [date]
Witnessed by [signature of witness]
Full name of witness [name of witness]
Address of witness [address of witness]”
(c)
The continuing
attorneys may continue to act notwithstanding that the partial revocation to
the LPA may not yet have been registered by the Judicial Greffe.
(d)
The completed
instrument of partial revocation, with enclosures, should be delivered to the
Probate and Protection Division at the Judicial Greffe.
(e)
The fee for making this
change to an LPA can be paid over the telephone by contacting a member of the
Protection Team at the Judicial Greffe or in person when the instrument of
partial revocation is delivered to the Judicial Greffe.
(f)
Upon review of an
instrument of partial revocation, a member of the Protection Team at the Judicial
Greffe will:
1)
affix a note to the
original LPA, and any certified true copies of the LPA, against the name and
details of the attorney whose authority has been revoked stating that that
attorney can no longer act;
2)
amend the register of LPAs
to reflect that the authority granted to the attorney has been revoked; and
3)
write to the donor, the
revoked and continuing attorneys acknowledging receipt of the instrument of
partial revocation and enclosing an Act of Court confirming its registration. The letter to the donor will also include the
updated original LPA, and any certified true copies of the LPA.
(g)
Once received, the
donor or one of the continuing attorneys should ensure that banks, other
organisations and individuals as appropriate see sight of the updated LPA so
that they might update their records.
(ii)
If
a donor wishes to add another attorney or make a material change to an LPA
(a)
Where a donor wishes to
make material changes to their existing LPA they will need to revoke (cancel)
their existing LPA and create a new one.
The donor must still retain capacity to make their own decisions in
order to revoke an LPA.
(b)
To revoke an LPA the
donor should send an instrument of revocation to the Probate and Protection
Division of the Judicial Greffe.
(c)
The following is the
wording for the instrument of revocation.
“This instrument of revocation is made by
[donor’s name] of [donor’s address].
1. I granted a lasting power of attorney for
property and affairs/health and welfare (delete as appropriate) registered with
the Judicial Greffe on [date the lasting power of attorney was registered]
appointing [name of first attorney] of [address of first attorney] and [name of
second attorney] of [address of second attorney] to act as my attorney(s). [delete
as appropriate]
2. I revoke the lasting power of attorney and
the authority granted by it in its entirety.
I enclose:
(i) a copy of my communication
with [attorney’s name that you are revoking] informing [him/her/them] that I
intend to apply or have applied to the Royal Court to revoke my original LPA in
its entirety and, therefore, their appointment as my attorney; and
(ii) my original lasting
power of attorney for property and affairs/health and welfare [delete as
appropriate] together with certified true copies of the lasting power attorney [if
applicable]. NOTE: [If the original
LPA has been lost or mislaid a statement should be inserted to this effect]
Signed [donor’s signature]
Date signed [date]
Witnessed by [signature of witness]
Full name of witness [name of witness]
Address of witness [address of witness]”
(d)
The completed
instrument of revocation should be delivered to the Probate and Protection Division
at the Judicial Greffe together with (i) the original
LPA; (ii) any certified true copies of the LPA; and (iii) a completed
application for a new LPA (if applicable), which, once registered by the
Judicial Greffe, will give effect to the changes that the donor wishes to make.
(e)
Upon review of an
instrument of revocation, the Judicial Greffe will:
1)
update the register of LPAs
to reflect that the existing LPA and authority granted to the attorneys and any
replacement attorneys has been revoked; and
2)
write to the donor, all
the former attorneys and replacement attorneys acknowledging receipt of the
instrument of revocation and enclosing an Act of Court confirming that the LPA
and the authority granted pursuant to it has been revoked.
(f)
The Judicial Greffe
will register the new LPA and will write to each of the donor, attorneys and
replacement attorneys (if any have been appointed) informing them that the new
LPA has been registered.
(g)
The donor should inform
their bank, other organisations and individuals as appropriate that their earlier
LPA has been cancelled and replaced so that they might update their records.
4.
Revoke
(cancel) an LPA
(i)
Where a donor wishes to
revoke their LPA they should send the Probate and
Protection Division of the Judicial Greffe an instrument of revocation. The donor must be able to make their own
decisions when they end an LPA.
(ii)
The following is the
wording for the instrument of revocation.
“This instrument of revocation is made by
[donor’s name] of [donor’s address].
1. I granted a lasting power of attorney for
property and affairs/health and welfare [delete as appropriate]
registered with the Judicial Greffe on [date the lasting power of attorney was
registered] appointing [name of first attorney] of [address of first attorney]
and [name of second attorney] of [address of second attorney] to act as my
attorney(s). [delete as appropriate]
2. I
revoke the lasting power of attorney and the authority granted by it in its
entirety.
I enclose:
(i)
a
copy of my communication with [attorney’s name that you are revoking] informing
[him/her/them] that I intend to apply or have applied to the Royal Court to
revoke their appointment as my attorney; and
(ii)
my
original lasting power of attorney for property and affairs/health and welfare
[delete as appropriate] together with certified true copies of the lasting
power attorney [if applicable].
Signed [donor’s signature]
Date signed [date]
Witnessed by [signature of witness]
Full name of witness [name of witness]
Address of witness [address of witness]”
(iii)
The completed
instrument of revocation should be delivered to the Probate and Protection Division
at the Judicial Greffe together with the original of the existing LPA and any
certified true copies of the LPA.
(iv)
Upon review of an
instrument of revocation, the Judicial Greffe will:
(a)
update the register of
LPAs to reflect that the LPA and authority granted to the attorneys and any
replacement attorneys has been revoked; and
(b)
write to the donor, all
the former attorneys and replacement attorneys acknowledging receipt of the
instrument of revocation and enclosing an Act of Court confirming that the LPA
and the authority granted pursuant to it has been revoked.
(v)
The donor should inform
their bank, other organisations and individuals as appropriate that their LPA
has been cancelled so that they might update their records.
5.
Other
ways an LPA can end
An LPA shall end if a
single attorney:
(i)
loses
the ability to make decisions;
(ii)
commences
legal proceedings to divorce the donor or end the civil partnership (if they
are husband, wife or partner) and the LPA does not specify that in such
circumstances the donor would like the attorney to continue in the role;
(iii) becomes the subject of bankruptcy in Jersey as defined by
Article 8 of the Interpretation (Jersey) Law 1954 or any insolvency or
proceedings of a similar nature to bankruptcy in any place outside Jersey;
(iv)
is
removed by the Royal Court of Jersey; or
(v)
dies.
6.
If
an attorney’s details change
(i)
The donor or attorney must
write to the Probate & Protection Division of the Judicial Greffe if one of
the attorneys has changed their (i) name – by
marriage or deed poll; and (ii) address, providing supporting documents, such
as the original marriage certificate, with their new name and address.
(ii)
If requested to do so,
the Judicial Greffe can issue an amended LPA for which an administration fee
will be payable.
(iii)
The Judicial Greffe
will update the register of LPAs to reflect the name change or change of
address.
(iv)
The Judicial Greffe
will not update the original LPA as those details were correct at the time of
registration.
(v)
The attorney should
inform the bank, other organisations or individuals of their change of name or
address so that they might update their records too.
7.
If
an attorney dies
(i)
The donor or another
attorney must inform the Probate & Protection Division of the Judicial
Greffe of the attorney’s death and provide them with:
(a)
the original LPA;
(b)
all certified copies of
the LPA (if any); and
(c)
where available,
evidence of the attorney’s death, such as a death notice in newspaper or a copy
of their death certificate.
(ii)
The Judicial Greffe
will then:
(a)
affix a note on the
LPA, and any certified true copies of the LPA, against the name and details of
the deceased attorney stating that that attorney can no longer act;
(b)
amend the register of LPAs
to reflect that the attorney is deceased; and
(c)
write to the donor
(copying in the continuing attorneys) confirming that the register of LPAs has
been updated to reflect the death of the attorney and returning the updated
original and certified true copies of the LPA if any.
8.
If
a donor changes address
(i)
An attorney or the
donor must write to the Probate & Protection Division of the Judicial
Greffe if the donor changes address, for example moves into a care home.
(ii)
The Judicial Greffe
will update the register of LPAs to reflect the change of address.
(iii)
Unless requested to
provide an amended LPA, for which an administration fee will be payable, the
Judicial Greffe will not update the original LPA as those details were correct
at the time of registration.
9.
When
a donor dies
(i)
An attorney must inform
the Probate & Protection Division of the Judicial Greffe of the donor’s
death and provide them with:
(a)
evidence of their
death, for example a copy of the donor’s death certificate;
(b)
the original LPA; and
(c)
all certified copies of
the LPA (if any).
(ii)
The Judicial Greffe
will then:
(a)
affix a note on the LPA
that the donor is deceased; and
(b)
amend the register of LPAs
to reflect that the donor is deceased and the LPA is
no longer valid.
This practice direction is effective
immediately.
8 November 2022