Capacity and Self-Determination (Miscellaneous Provisions and Prescribed Fees and Forms) (Jersey) Order 2018

Made                                                                   28th September 2018

Coming into force                                                     1st October 2018

THE MINISTER FOR HEALTH AND SOCIAL SERVICES, in pursuance of Articles 13, 17, 34, 36, 43, 52, 56 and 70 of, and the Schedule to, the Capacity and Self-Determination (Jersey) Law 2016[1], and of Regulations 15 and 18 of the Capacity and Self-Determination (Supervision of Delegates, etc.) (Jersey) Regulations 2018[2], orders as follows –

1        Interpretation

In this Order –

“Law” means the Capacity and Self-Determination (Jersey) Law 2016[3];

“Regulations” means the Capacity and Self-Determination (Supervision of Delegates, etc.) (Jersey) Regulations 2018[4].

2        Information as to the effect of LPA

(1)     Paragraphs (2) and (3) set out the information prescribed for the purposes of paragraph 1(1)(a) and (b), respectively, of Part 1 of the Schedule to the Law, and no instrument purporting to confer a lasting power of attorney is valid unless it contains that information.

(2)     The information mentioned in paragraph (1) and prescribed for the purposes of paragraph 1(1)(a) is as follows –

 

You, all of your attorneys, replacement attorneys and witnesses must sign this lasting power of attorney to form a legal agreement between you.

 

By signing this lasting power of attorney, you (the donor) are appointing people (attorneys) to make decisions for you.

 

LPAs are governed by the Capacity and Self-Determination (Jersey) Law 2016 (CSDL), regulations made under it and the CSDL Code of Practice.

Attorneys must have regard to these documents. The Code of Practice is available on gov.je.

 

Your attorneys must follow the principles of the CSDL:

 

1. Your attorneys must assume that you can make your own decisions unless it is established that you cannot do so.

2. Your attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision. They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.

3. Your attorneys must not treat you as unable to make a decision simply because you make an unwise decision.

4. Your attorneys must act and make decisions in your best interests when you are unable to make a decision.

5. Before your attorneys make a decision or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.

 

Your attorneys must always act in your best interests. This is explained in the LPA guide and in the CSDL Code of Practice.

 

Before this LPA can be used it must be registered by the Judicial Greffe.

Your attorneys can only use this LPA if you don’t have capacity or, in the case of a property and affairs LPA, you permit them to act on your behalf where you still retain capacity.

 

Cancelling your LPA: You can cancel this LPA at any time, as long as you have capacity to do so. It doesn’t matter if the LPA has been registered or not.

 

Your will and your LPA: Your attorneys cannot use this LPA to change your will. This LPA will expire when you die. Your attorneys must then send the registered LPA, any certified copies and a copy of your death certificate to the Judicial Greffe.”.

 

(3)     The information mentioned in paragraph (1) and prescribed for the purposes of paragraph 1(1)(b) is as follows –

 

LPAs are governed by the CSDL, regulations made under it and the CSDL Code of Practice. Attorneys must have regard to these documents. The Code of Practice is available online.

 

By signing this section I understand and confirm all of the following:

• I am aged 18 or over

• I have read this lasting power of attorney (LPA)

• I have a duty to act based on the principles of the CSDL and to have regard to the CSDL Code of Practice

• I must make decisions and act in the best interests of the donor

• I must take into account any instructions or preferences set out in this LPA

I can make decisions and act only when this LPA has been registered and when the donor lacks capacity (except in the case of a property and affairs LPA, in which case the LPA may contain provision permitting the making of decisions where the donor does not lack capacity).

 

Further statement by a substitute attorney: I understand that I have the authority to act under this LPA only after an original attorney’s appointment is terminated. I must notify the Judicial Greffe if this happens.”.

3        Persons who may witness execution of LPA

The following descriptions of person are those prescribed for the purposes of paragraph 1(1)(c) and (2) of Part 1 of the Schedule to the Law, namely –

(a)     a member of the Assembly of the States of Jersey;

(b)     a Jurat of the Royal Court;

(c)     a Notary Public;

(d)     an advocate or solicitor of the Royal Court;

(e)     a person admitted as a barrister to the Bar of England and Wales or as a solicitor of the Senior Courts of England and Wales or similarly qualified under the laws of any other jurisdiction;

(f)      a member of the Jersey Society of Chartered and Certified Accountants or of an equivalent professional body in any other jurisdiction;

(g)     a person registered as a medical practitioner under the Medical Practitioners (Registration) (Jersey) Law 1960[5];

(h)     a person registered under the Health Care (Registration) (Jersey) Law 1995[6];

(i)      such other person, of a similar standing to those described in paragraphs (a) to (h), as the Judicial Greffe may consider appropriate.

4        Fees in connection with registration of LPA

(1)     The fee which must accompany every application for registration of a lasting power of attorney under Part 2 of the Schedule to the Law –

(a)     in the case of an applicant in receipt of a qualifying benefit, is £10;

(b)     in the case of any other applicant, is £25.

(2)     In paragraph (1)(a), “qualifying benefit” has the same meaning as is given to that expression by Regulation 15(7) of the Regulations.

5        Period prescribed for registration of LPA

The period prescribed for the purpose of paragraph 3(1) of Part 2 of the Schedule to the Law is the period of 4 weeks beginning with the latest date on which the Judicial Greffe gave notice, under paragraph 2 of Part 2 of that Schedule, of receipt of the application for registration.

6        Requirements for disclaimer of appointment under LPA

For the purposes of Article 17(5) of the Law, the disclaimer by A of an appointment must be made –

(a)     by notice given in writing to P that A disclaims the appointment; and

(b)     by A’s sending a copy of such notice to the Judicial Greffe, and to any other person who at that time is also appointed and acting as A under the lasting power of attorney in question.

7        Supervision of delegates by the Viscount: prescribed scale of fees

(1)     Paragraph (2) has effect to prescribe the scale of fees for the purposes of Regulation 15 of the Regulations.

(2)     The supervision fee payable in accordance with Regulation 15 is –

(a)     in relation to the basic level of supervision, £32 per annum;

(b)     in relation to the enhanced level of supervision, £320 per annum.

(3)     The fee payable in respect of an initial assessment by the Viscount of the appropriate level of supervision is £100.

8        Fees and expenses of delegates

(1)     Where a person is appointed by the Court under Article 24 of the Law as a delegate in relation to P’s property and affairs, paragraphs (3) to (8) apply –

(a)     as regards fees, where the Court also directs that the person is entitled to receive remuneration; and

(b)     as regards expenses, in every case.

(2)     A person who (having acted as a curator until the date on which the Regulations come into force) is a delegate by the operation of Regulation 22, is entitled to repayment of expenses and to receive remuneration –

(a)     in the case of a professional delegate, in accordance with paragraphs (3) and (5), and notwithstanding Regulation 22(3)(c), paragraphs (6) and (7);

(b)     in the case of a delegate other than a professional delegate, in accordance with paragraphs (4) and (5).

(3)     A professional delegate is entitled to charge, and be paid out of P’s estate, his or her usual professional fees for doing, and repayment of expenses properly incurred by the delegate in employing another professional person to do, any work in connection with the administration of P’s property and affairs.

(4)     A delegate who is not a professional delegate is entitled to charge, and be paid out of P’s estate, fees for doing any work as delegate in connection with the administration of P’s property and affairs, and to repayment out of P’s estate of any expenses properly incurred by the delegate in employing an advocate, solicitor or other professional person to do, in connection with the administration of P’s property and affairs, any work normally requiring professional assistance.

(5)     The fees and expenses mentioned in paragraphs (3) and (4) must be reasonable and proportionate, having regard in particular to –

(a)     P’s best interests;

(b)     the total value of P’s assets;

(c)     the amount of work carried out (whether calculated by number of hours, or in any other manner), and the nature and scope of the tasks comprised in such work; and

(d)     in respect only of fees under paragraph (4), the limits prescribed by Article 9.

(6)     For the purpose of demonstrating that fees or expenses are reasonable and proportionate, a delegate must –

(a)     provide to the Judicial Greffe, in accordance with paragraph (7), an annual plan which must include –

(i)      a statement of actions which the delegate anticipates may be necessary on behalf of P (such as, and without limitation, any sale of immovable property or realization of investments),

(ii)      a statement of any amounts which the delegate anticipates may accrue to P as a result of any such actions,

(iii)     an estimate of anticipated expenditure for P’s maintenance and benefit, and

(iv)     an estimate of the delegate’s anticipated fees and expenses;

(b)     at the end of each period to which an annual plan relates or as soon afterwards as may be reasonable (but in any event no later than 3 months after the end of the period), prepare and send to the Judicial Greffe a report, which must set out –

(i)      a statement of the work done by the delegate or by any person employed by the delegate in connection with the administration of P’s property and affairs,

(ii)      an account of all monies received and expended by the delegate acting in such capacity on behalf of P, and

(iii)     confirmation of the delegate’s actual fees charged and expenses incurred for the period concerned;

(c)     provide an inventory of P’s property, assets and liabilities –

(i)      to the Judicial Greffe, at the commencement and at the end of the period of appointment or as soon afterwards as may be reasonable, but in any event within no more than 3 months of the commencement or end of the period, and

(ii)      otherwise to the Judicial Greffe or to the Viscount, as either may require from time to time.

(7)     The annual plan mentioned in paragraph (6)(a) must be provided –

(a)     at the commencement of the delegate’s appointment; and

(b)     where the appointment lasts for a year or more, on each anniversary of the appointment,

or as soon afterwards as may be reasonable, but in any event no later than 3 months after the commencement of the appointment, or the anniversary, as the case may be.

(8)     In this Article “professional delegate” means a person who –

(a)     carries on the business of providing financial or legal services; and

(b)     is appointed to provide such services in the capacity of a delegate in relation to P’s property and affairs.

9        Scale of fees of delegates other than professional delegates

The financial limit prescribed under Article 34(7) of the Law, in relation to delegates entitled to fees under Article 8(4), is the appropriate percentage as set out in the following table –

 

Gross annual income of P

Percentage of such income which may be charged

Not exceeding £10,000

5%

£10,001 or over, but not exceeding £25,000:

 

on first £10,000

5%

on the amount between £10,001 and £25,000

3%

£25,001 or over:

 

on first £10,000

5%

on the amount between £10,001 and £25,000

3%

on the amount exceeding £25,001

2.5%

10      Requirements to disclose information for purpose of monitoring authorizations under Part 5 of the Law

(1)     This Article applies to the Commission, M, and a registered person, for the purposes mentioned in Article 56(1) of the Law.

(2)     A person to whom this Article applies must, if required to do so by the Minister, disclose to the Minister –

(a)     in the case of the Commission, any information disclosed to the Commission by M pursuant to the Regulation of Care (Jersey) Law 2014[7];

(b)     in the case of M –

(i)      any care plan made in respect of P, and

(ii)      where relevant, any policy (whether relating to the operation of the relevant place generally, or to the imposition of restrictions on P’s liberty) applying in the relevant place in respect of P;

(c)     in the case of a registered person, any information concerning P which is held by that person under the Long-Term Care (Jersey) Law 2012[8].

11      Prescribed forms

(1)     The forms prescribed, for the purposes of paragraph 1(1) of Part 1 (form of instrument conferring a lasting power of attorney) and paragraph 1(2) of Part 2 (application for registration of lasting power of attorney) of the Schedule to the Law, are those which are accessible through, and appear, on the date on which this Order comes into force, at www.gov.je/lastingpowerofattorney, or such other forms (accessible through, and appearing at, the same address) as the Minister may agree from time to time.

(2)     The following forms, which are set out in the Schedule, are those prescribed for the following purposes of the Law –

 

Number identifying form in Schedule

Purposes (and provisions of Law) for which form is prescribed

Form 1

Request for assessment for purposes of, and request for renewal of, a standard authorization (Article 43(3)(b) and 52(3)(a))

Form 2

Acknowledgement of application for registration of lasting power of attorney (Schedule, Part 2, para 2)

Form 3

Notification of registration of lasting power of attorney (Schedule, Part 2, para 6)

12      Citation and commencement

This Order may be cited as the Capacity and Self-Determination (Miscellaneous Provisions and Prescribed Fees and Forms) (Jersey) Order 2018 and shall come into force immediately following the commencement of the Law.

deputy r.j. renouf of st. ouen

Minister for Health and Social Services

 


SCHEDULE

(Article 11(2))

forms prescribed for the purposes of the law

FORM 1

Title: Form 1


 

 

Title: Form 1


 

 

Title: Form 1


 

 

Title: Form 1


 

 

FORM 2

Acknowledgement of receipt of application for Lasting Power of Attorney

 

Title: Form 2

 


 

 

FORM 3

Notification of registration of lasting power of attorney

 

Title: Form 3

 

 


 



[1]                                    L.30/2016

[2]                                    R&O.46/2018

[3]                                    L.30/2016

[4]                                    R&O.46/2018

[5]                                    chapter 20.600

[6]                                    chapter 20.300

[7]                                    chapter 20.820

[8]                                    chapter 26.600


Page Last Updated: 01 Oct 2018