Self-Determination (Supervision of Delegates etc.) (Jersey) Regulations 2018
Made 9th April 2018
Coming into force in
accordance with Regulation 23
THE STATES, in pursuance of Articles 33, 36, and 69 of the Capacity and
Self-Determination (Jersey) Law 2016, have made the following
In these Regulations –
“Law” means the Capacity and
Self-Determination (Jersey) Law 2016;
(b) “attorney” means a person on whom authority
is conferred by a lasting power of attorney under Part 2 of the Law; and
reference (without further specification) to “P” is a reference to
the person who is the person so designated under Part 2 or, as the case
may be, Part 4 of the Law.
person or office
Viscount is designated as having responsibility for the matters set out in Article 36(1)(a)
to (c) of the Law and shall exercise such responsibility in accordance with the
further provision made by these Regulations.
the purpose of exercising such responsibility the Viscount may enter into all
such arrangements, including by or with any other person, as the Viscount may
consider necessary or expedient.
of investigation where representations etc. received
Regulation applies where –
Viscount has received representations (including, but not limited to,
complaints) about the exercise of powers, or a failure to exercise powers, by
an attorney or a delegate; or
(b) it otherwise
appears to the Viscount that there are circumstances, such as described in paragraph (2),
circumstances mentioned in paragraph (1)(b) are such circumstances as –
the Viscount sufficient cause to believe that the attorney or delegate has
behaved, is behaving or proposes to behave –
(i) in contravention
of the terms, or outside the scope, of his or her appointment, or
(ii) otherwise not in P’s
rise to concerns on the part of the Viscount about the conduct of the attorney
or delegate (including, but not limited to, the level of fees charged or
proposed to be charged by a delegate);
that an attorney or a delegate has failed to comply with an order made or
directions given by the Court; or
constitute good reason, in the view of the Viscount, to seek further
information about an attorney’s or delegate’s discharge of his or
this Regulation applies, the Viscount may –
notice in writing given to the attorney or delegate, require the attorney or
delegate to provide –
(i) such information (including
accounts) or documents as may be specified, or as are of such description as
may be specified, and
(ii) such reports as
the Viscount may require, from the attorney or delegate, as to the exercise of
his or her functions,
and in either case, to do so in such a manner and before the end of
such reasonable period and at such place as may be specified; and
that an act or decision, or a proposed act or decision, by an attorney or a
delegate be suspended or postponed until such time as, for the purpose of
concluding the investigation, the Viscount may reasonably require.
any information or document is provided to the Viscount under paragraph (3)(a)(i),
the Viscount may further require such information to be verified, or such
document to be authenticated, in such reasonable manner as the Viscount may see
in these Regulations shall require the Viscount to investigate, consider or
determine any complaint if, in the Viscount’s opinion –
subject matter of the complaint is trivial; or
complaint is frivolous or vexatious or is not made in good faith.
for additional time to submit a report
person required under Regulation 3(3)(a)(ii) to submit a report may make
an application to the Viscount to request more time for doing so.
application under paragraph (1) must –
the grounds for requesting more time; and
or be accompanied by, such information as the Viscount may reasonably require
to determine the application.
Viscount may, in response to an application under paragraph (1), grant
such extension of time as the Viscount may consider reasonable.
of investigation: general
the purpose of further enabling the Viscount to exercise responsibility under
the Law or functions under these Regulations, the Viscount may exercise the
powers conferred by paragraphs (2), (3), and (5) to (7).
Viscount may, at all reasonable times, examine and take copies of any record
kept in relation to P –
the Minister or by the Health and Social Services Department, and relevant to a
decision made or proposed to be made on behalf of P;
(b) by –
(i) a person
registered under the Health Care (Registration) (Jersey) Law 1995 or the Nursing and
Residential Homes (Jersey) Law 1994, or
(ii) any person, other
than such a person as mentioned in sub-paragraph (b)(i), providing
domiciliary care to P; and
(c) by persons
or bodies carrying on the business of providing financial services within the
meaning given to that expression by Article 1(1) of the Financial Services
Commission (Jersey) Law 1998; or
the Judicial Greffe.
Viscount, or a person authorized by the Viscount to do so, may interview an
attorney, a delegate, P, or such other person and by such means (subject to and
in accordance with paragraphs (4) to (6)), including by visiting the
person, as the Viscount may reasonably consider necessary.
it is proposed to exercise the power conferred by paragraph (3) by
visiting a person, the Viscount or the authorized person must notify, or make
arrangements to notify, the person to be interviewed of –
proposed date, time and place of the visit;
the extent that it is practicable to do so, any specific matters which are the
subject of the interview; and
proposal to inform any person, other than a person mentioned in paragraph (3),
of the interview.
Viscount, or a person authorized by the Viscount to do so, may with P’s
consent interview P privately without the attendance of P’s attorney or
Viscount, or a person authorized by the Viscount to do so, may request an
attorney or a delegate to attend for interview at the Viscount’s offices
at a specified date and time.
the purposes of investigation into a complaint received by the Viscount, the
Viscount may consult such persons, being persons having expertise in the matter
in respect of which the complaint is made, as the Viscount may see fit.
to request final reports concerning delegates
Regulation applies in any case where –
(a) P, being
a person in relation to whom a delegate was appointed under Part 4 of the
Law, has died;
delegate has become incapable of carrying out his or her function as such, or
Court has made an order discharging a delegate; or
delegate otherwise ceases to be under a duty to discharge his or her function
the case in which this Regulation applies is that described –
(a) in paragraph (1)(a),
the delegate must notify the Viscount of P’s death;
(b) in paragraph (1)(c),
the Judicial Greffe must notify the Viscount of the order of the Court;
(c) in paragraph (1)(d),
the delegate must notify the Viscount of the discharge.
(3) The Viscount may require an attorney or delegate (or, in the case
where the delegate has died, his or her personal representatives or such other
persons as the Viscount considers appropriate) to submit –
the end of such reasonable period; and
such form and manner,
as may be specified by notice in writing given to the delegate, a
final report on the exercise of the delegate’s function.
Viscount must consider a final report submitted under paragraph (3),
together with any other information the Viscount may have in relation to the
discharge of functions by the delegate, and may, for the purpose of such
consideration, request such additional information or documents from the
delegate as the Viscount may consider necessary.
the Viscount is dissatisfied with any aspect of a final report, the Viscount
may apply to the Court for an appropriate remedy (including the enforcement of
any security given by a delegate).
to draw complaints to the attention of the Court
investigation under Regulation 3; or
Viscount’s consideration of a final report under Regulation 6,
the Viscount considers it necessary or appropriate to do so, the
Viscount may make, or may request the Attorney General to make, an application
to the Court requesting the exercise, in relation to an attorney or a delegate,
of any of the Court’s powers under the Law.
considering whether it is necessary or appropriate to exercise the power
conferred by paragraph (1), the Viscount –
consider P’s best interests; and
consider such other matters as the Viscount considers relevant, including (but
not limited to) compliance by the attorney or delegate with any requirements of –
(i) the Law, and of
any other applicable enactments or rules made under the Law,
(ii) the code of
practice issued by the Minister under Article 68 of the Law,
(iii) guidance issued by the
Viscount under Regulation 12(1)(c),
(iv) the terms of the
lasting power of attorney (in the case of an attorney) or of appointment (in
the case of a delegate), and
(v) orders or directions
given by the Court.
to share information
Where the Viscount considers it necessary or expedient to do so, the
Viscount may disclose, to the Court, the Minister or such other persons as the
Viscount thinks fit, any information –
by the Viscount in the exercise of a function under the Law or these
to P, to P’s assets, or to an attorney or a delegate.
in relation to persons carrying out specific transactions
Regulation applies where, by an order made under Article 24(5) of the Law,
the Court has authorized a person (“T”) to carry out any
transaction for or on behalf of P.
this Regulation applies, the Viscount has the functions of –
any reports from T which the Court may require; and
with representations (including complaints) about –
(i) the way in which
the transaction has been or is being carried out, or
(ii) any failure to
carry out the transaction.
provisions of Regulations 3 to 6 shall have effect in relation to T as
though T were an attorney or a delegate.
and functions exercisable on death of P
The powers and functions conferred by Regulations 3 to 9 shall
remain exercisable by the Viscount notwithstanding the fact that P has died.
to require reconsideration of Viscount's decisions
attorney or a delegate may require the Viscount to reconsider any decision made
by the Viscount under Regulations 3 to 8 in relation to that attorney or
right conferred by paragraph (1) is exercisable by the attorney or
delegate giving notice in writing to the Viscount within the period of 21 days
beginning with the date on which notice of the decision was given to the
attorney or delegate.
given in accordance with paragraph (2) must –
the grounds for the request for reconsideration; and
or be accompanied by, any relevant information or documents.
any time after receiving the notice and before reconsidering the decision to
which it relates, the Viscount may require the attorney or delegate to provide
such further information, or to produce such documents, as the Viscount
reasonably considers necessary to enable reconsideration of the decision.
reconsideration, the Viscount must give to the attorney or delegate –
in writing of the decision on reconsideration; and
the previous decision is upheld, a statement in writing of the reasons for
12 General regulatory functions of Viscount
the purposes of exercising responsibility for the matters in relation to which
the Viscount is designated by Regulation 2, the Viscount may –
the activities of delegates (whether individually or by
reference to selected classes of delegates), and for this purpose and from time to time request reports in writing from delegates as to such matters as the Viscount may reasonably consider
necessary and appropriate;
and where appropriate publish, such reports on the activities of attorneys and delegates, to the Minister, the Court and to such other persons as the
Viscount may reasonably consider necessary and appropriate; and
any such review as mentioned in sub-paragraph (a) –
(i) issue such
guidance to delegates (in
addition and without prejudice to any code of practice issued by the Minister
under Article 68 of the Law), and
(ii) for this purpose
consult such persons,
as the Viscount may consider necessary and appropriate.
the exercise of any function under paragraph (1), the Viscount may, by
notice in writing given to any person, require the person –
provide such information (including accounts) or documents as may be specified,
or as are of such description as may be specified; and
do so in such a manner and before the end of such reasonable period and at such
place as may be specified.
13 Security to be given by delegates
in the exercise of its powers under Article 34(8)(a) of the Law, the Court
orders a delegate to give to the Judicial Greffier, or to such other person as
the Court may direct, security for the delegate’s discharge of his or her
functions, that security must be given –
means of a bond for such amount as the Court may think fit; or
such other means as the Court may direct.
the purposes of paragraph (1), the Court may require the delegate to
provide to the Court such endorsements, guarantees or undertakings, in such
form or manner, as to the provision of security as the Court may specify.
(3) Where –
is given to the Court in accordance with this Regulation; and
premium is payable in respect of that security,
the delegate must provide, on such dates or at such intervals as the
Court may determine, such information or evidence as the Court may specify as
to payment of the premium.
the Court orders the enforcement of any security given in accordance with this
Regulation, the Court must notify the Viscount of the arrangements made in
respect of that security under this Regulation, and direct that the Viscount
shall be responsible for enforcement of that security.
14 Court's determination as to supervision of delegate
Where, under Article 24(2)(b), (4) or (5) of the Law, the Court
exercises its power to appoint a delegate or to vary the powers conferred on a
delegate, the Court shall consider whether or not the delegate will require to
be supervised by the Viscount in the performance of his or her functions as
delegate, and –
the purposes of such consideration, the Court may request such information or
reports from such persons as the Court may reasonably consider necessary; and
the Court determines that the delegate should be so supervised, the Court shall
further determine the level of supervision required, and shall order
15 Fees for supervision of delegate
under Regulation 14, the Court makes an order for the supervision of a
delegate, the Viscount shall –
a supervision plan with the delegate; and
the delegate to pay to the Viscount such an amount by way of a fee in relation
to the supervision (a “supervision fee”) as may, by reference to
the prescribed scale of fees, be appropriate.
supervision fee shall be payable within 30 days of the date of the requirement
made under paragraph (1)(b) and thereafter annually throughout the
duration of the plan and, subject to paragraphs (3) to (5) –
be payable –
(i) throughout the
duration of the plan, within 30 days of the date on which a requirement
for payment of the fee is made, or
(ii) upon termination
of the plan, within 30 days of that termination; and
paid by the delegate out of P’s assets.
the period in respect of which a supervision fee is payable is less than one
year, the amount of the fee shall be in the same proportion to the full fee
prescribed for a year as the proportion that period bears to one year.
amount of any supervision fee shall be payable where, at the date when the fee
would otherwise be payable under paragraph (2)(a) –
is in receipt of a qualifying benefit; or
an case where P is not in receipt of such a benefit, P’s assets are insufficient
to pay the amount.
prejudice to paragraph (3), in any case other than one described in that
paragraph where the Viscount considers that the imposition of a supervision fee
would, in the circumstances of the particular case, cause undue hardship, the Viscount
may determine that the fee is to be reduced (or, where the fee has already been
paid, remitted) by such amount as the Viscount sees fit, including by the full
amount of the fee.
application for the remission of the whole or part of a supervision fee under paragraph (5)
shall be made to the Viscount within the period of 6 months beginning with
the date on which the request for payment of the fee is made under paragraph (1)(b).
the purpose of paragraph (4)(a), P is in receipt of a “qualifying
benefit” if –
is a member of a household in receipt of income support under the Income
Support (Jersey) Law 2007;
meets the requirements for a special payment to defray the expenses of
long-term care being provided to P, under Regulation 2 of the Income
Support (Special Payments) (Long-Term Care) (Jersey) Regulations 2014;
receives a grant under Article 11, or a loan under Article 12, of the
Long-Term Care (Benefits) (Jersey) Order 2014 for the purpose of meeting
the weekly costs mentioned in Article 9(c) of that Order; or
is a person admitted to the health bonus scheme pursuant to a determination
under Article 5 of the Social Security (Health Bonus Scheme) (Jersey) Order 2016.
acting as delegate: application of Regulations, etc.
(1) Regulations 3,
4, 6, and 10 to 12 shall not apply to the Viscount acting in the capacity of a
delegate under Part 4 of the Law.
code of practice issued under Article 68 of the Law shall apply to the
Viscount acting as mentioned in paragraph (1) –
the extent that the code is relevant to the circumstances of the particular
appointment of the Viscount as delegate; and
into account the needs, and assets, of P in the particular case in question.
in these Regulations shall be taken to restrict the right of any person, on
behalf of P, to make a complaint to the Viscount or to the Court in respect of
any default or neglect in the performance by the Viscount of the
Viscount’s function as a delegate.
of liability of Viscount
Viscount, or any member of the Viscount’s Department, shall not be liable
in damages for anything done or omitted in the discharge of or purported
discharge of any function under the Law, these Regulations or any other
enactment made under the Law.
(2) Paragraph (1)
does not apply –
it is shown that the act was done, or the omission made, in bad faith; or
as to prevent an award of damages made in respect of an act on the ground that
the act was unlawful as a result of Article 7(1) of the Human Rights
(Jersey) Law 2000.
18 Orders as to professional fees of delegates
Minister may by Order make provision as to professional fees to be charged by
delegates in respect of their functions, including in particular (but not
limited to) provision as to the matters listed in paragraph (2).
matters mentioned in paragraph (1) are –
amount of fees, whether by reference to a prescribed scale of fees or by
reference to a percentage of P’s assets, or otherwise;
services in respect of which fees are chargeable;
to provide estimates of fees to the Court, including the matters or services as
to which such estimates must be provided;
for agreement by the Court of such estimates and powers of the Court to confirm
of the Court to impose terms and conditions, in relation to particular
estimates of fees or to such estimates generally;
of the Viscount to refer any matter or question arising as to such fees or
estimates to the Court for the Court’s determination;
of the Court and of the Viscount to seek further information as to fees or
estimates from the delegate or from any other person concerned;
of the Court and of the Viscount exercisable in cases where an estimate of fees
is exceeded; and
in which exemptions from, or reductions or remissions of fees may be granted.
of providing false or misleading information
Where, in response to a request made under the Law or these
Regulations for provision of any information, document or report, an attorney
or delegate knowingly or recklessly provides information or a document or
report which is, in a material particular, false or misleading, the attorney or
delegate is guilty of an offence and liable to a
fine of level 3 on the standard scale.
An attorney or delegate who, without reasonable cause or excuse,
allow the interviewing (including visiting) of P by the Viscount or any other
person authorized by the Viscount under Regulation 5; or
provide any information, document or report to the Viscount or other person
authorized by the Viscount under that Regulation,
or who otherwise obstructs any such person in the exercise of his or
her functions under these Regulations, is guilty of an offence and liable to a
fine of level 3 on the standard scale.
of disclosing confidential personal information
attorney or delegate who knowingly or recklessly discloses confidential
information relating to P, other than in the exercise of his or her authority
as attorney or delegate in accordance with the Law or these Regulations, is
guilty of an offence and liable to a fine of level 3 on the standard
the purposes of paragraph (1) “confidential information” is
any information relating to P which has been obtained by the attorney or
delegate in the course of the exercise of his or her authority as such.
(3) It is
a defence for a person charged with an offence under paragraph (1) to
prove that, at the time of the alleged offence –
of the circumstances in paragraph (4) applied in relation to the
person reasonably believed that any of those circumstances so applied.
circumstances mentioned in paragraph (3) are that –
disclosure was made in such a form or manner that P could not be identified
from the information disclosed;
disclosure was made with P’s consent;
information disclosed had previously been lawfully disclosed to the public;
disclosure was made in accordance with any enactment or order of a court;
disclosure was necessary or expedient for the purpose of protecting P’s
best interests; or
was necessary or expedient for the disclosure to be made to a person or body for
the purpose of enabling that person or body to exercise functions under any
a person relies on a defence under paragraph (3) and evidence is adduced
which is sufficient to raise an issue as to that defence, the court must assume
that the defence is satisfied unless the prosecution proves beyond reasonable
doubt that it is not.
and saving provisions
this Regulation, a reference to the “commencement day” is to the
day on which the Capacity and Self-Determination (Jersey) Law 2016 (the “Capacity
Law”) comes into force, and a reference to a delegate is to a delegate
within the meaning of Part 4 of the Capacity Law.
immediately before the commencement day, a curator appointed under Article 43
of the Mental Health (Jersey) Law 1969 is managing and administering
the property and affairs of a person in accordance with that Article, Part 4
of the Capacity Law shall apply, on and after the commencement day, subject to
and with the further modifications set out in paragraphs (3) and (4), and –
relation to the curator, as though the curator were a delegate appointed under
that Part, having given the consent required by Article 34(2) of the
Capacity Law, and having all powers; and
relation to the person whose property and affairs are managed and administered
by the curator, as though that person were “P” within the meaning
of that Part.
the repeal of the Mental Health (Jersey) Law 1969 by the Mental Health
(Jersey) Law 2016 –
provisions of Article 43(8), (9) (except for sub-paragraph (a)) and (10)
of the Mental Health (Jersey) Law 1969 shall continue to apply, on or
after the commencement date, so that a person to whom paragraph (2)(a)
would otherwise apply may cease to hold office (whether as curator or as
delegate) under any of those provisions;
a curator declines to act as a delegate, he or she may resign his or her office
and Article 43(11) of the Mental Health (Jersey) Law 1969 shall
continue to have effect for the purpose of enabling such resignation, but as
though for the power of the Court under that provision to appoint some other
person as curator there were substituted the power of the Court to appoint a
delegate under Article 24 of the Capacity Law; and
(c) Article 43(20),
(21) and (24) of the Mental Health (Jersey) Law 1969 shall continue to
have effect as though the requirements for submitting inventories and accounts
under those provisions were requirements made by the Court under Article 34(8)(b)
of the Capacity Law for reports to be provided to the Judicial Greffier, except
that Article 43(20)(b) of the Mental Health (Jersey) Law 1969 shall
apply as though for the time limit of 30 days in that provision there were
substituted a limit of 90 days.
person becoming a delegate by virtue of the application of paragraph (2)
shall have all such powers as are exercisable by a delegate appointed under
Part 4 of the Capacity Law, subject to any conditions or restrictions
which may be imposed by the Court of its own motion under that Part or pursuant
to an application made to the Court by that person.
These Regulations may be cited as the Capacity and
Self-Determination (Supervision of Delegates etc.) (Jersey) Regulations 2018
and shall come into force immediately following the commencement of the
Capacity and Self-Determination (Amendment) (Jersey) Law 201-.
Deputy Greffier of the States