Guidance for attorneys and delegates

A person with mental capacity is able to make a specific decision at the time it needs to be made.  They will have a general understanding of: -

• the decision they need to make
• why they need to make it
• any information relevant to the decision
• what is likely to happen when they make it

They should be able to communicate their decision through speech, signs or in other ways.

A person who lacks capacity is unable to make the decision at the time it needs to be made because they have an impairment or disturbance, which affects how their mind or brain works.  Some examples of impairment or disturbances that might affect a person’s decision-making include: -

• conditions associated with some forms of mental illness
• dementia
• significant learning disabilities
• brain damage
• conditions that cause confusion or loss of consciousness
• delirium
• communication issues due to trauma or stroke
• effects of alcohol or drug use
• coma 

If there is no impairment or disturbance, the person is considered to have capacity under the law.

Capacity is not always fixed

A person may have the capacity to make some decisions but not others.  For example, they may be able to decide what to buy for dinner but will be unable to understand and arrange their home insurance or place some savings in a fixed bank account to receive a better rate of interest.

If someone’s condition changes day-to-day, there may be times when they have capacity to make a decision and times when they do not.  In such circumstances, the decision-maker should decide whether the decision can be delayed until a time when the person has capacity.  

A person can also temporarily lack capacity, for example if they are unconscious.

Assessing capacity

The law states that a person must be assumed to have capacity, unless it is proven otherwise.  Decision-makers are required to assess a person’s capacity before making a decision or taking an action on the person’s behalf.  Capacity must never be based on unjustified presumptions, about: - 

• the person’s age
• the person’s appearance
• any aspects about the person’s condition or their behaviour

Appearance refers to all aspects of the way people look and includes physical characteristics of certain conditions (for example, scars, features linked to Down’s syndrome or muscle spasms caused by cerebral palsy) as well as aspects of appearance like tattoos and body piercings, or the way people dress. 

Condition refers to physical disabilities, cognitive impairment, learning difficulties and disabilities, illness related to age, and temporary conditions (for example, intoxication). Aspects of behaviour might include extrovert (for example, shouting or gesticulating) or withdrawn behaviour (for example, talking to yourself or avoiding eye contact).

Chapter 2 of the  Capacity and Self-Determination (Jersey) Law 2016 Code of Practice gives more detailed guidance on assessing capacity.

Best interests means making decisions that are best for someone who can’t decide for themselves.  This varies from person to person and situation to situation.  Decisions must be:-

Person-Centred: The person’s past and present wishes, feelings, beliefs, and values should be considered, even if they can’t make the decision themselves.

Not be assumed: Decisions should not be based on age, appearance, or unjustified assumptions about the person’s health, condition or behaviour.

Reviewed and adapted: Best interests can change over time, so decisions should be regularly reviewed.

Decision-makers 

It is the decision-maker’s responsibility to work out what would be in the best interests of the person who lacks capacity.  If there is an attorney or delegate, they would be the decision-maker for all decisions within the scope of their authority. The scope of decision-making will be set out in the lasting power of attorney (LPA) for attorney’s and set by the Court for delegates.
 
In the absence of an attorney or delegate, a range of different decision-makers may be involved with a person who lacks capacity. The decision-maker varies depending on the decision to be made.  For example: 

• for day-to-day actions or decisions, the decision-maker will usually be the family member or carer most directly involved with the person at the time
• for medical treatment, the doctor or another member of healthcare staff responsible for carrying out the particular treatment or procedure is the decision-maker 
• where nursing or paid care is provided, the nurse or paid carer will be the decision-maker around care needs

No matter who is making the decision, the most important thing is that the decision-maker tries to work out what would be in the best interests of the person who lacks capacity, by: -

1. Involving the Person: Encourage and support the person to participate in the decision-making process as much as possible.
2. Delaying if possible: If the person might regain capacity, consider delaying the decision.
3. Considering wishes and feelings: Take into account the person’s past and present wishes, feelings, beliefs and values
4. Consulting Others: Seek the views of people close to the person, like family and friends.

Reasonable belief about a person’s best interests 

Decision-makers must have reasonable belief that they are acting in a person’s best interests. This prevents decision-makers imposing their own views as they must have objective reasons for their decisions and be able to demonstrate this. They must be able to show they have considered all relevant circumstances and applied the core principles of the Law including the best interest process.

Chapter 3 of the Code of Practice gives more detail and guidance on making best interest decisions.

You and your professional witness must sign the document together (on the same day and at the same time).

A professional witness must be an independent and impartial person who is a member of one of the following professions:

• a sitting member of the States of Jersey Assembly, for example a parish constable, a deputy or a minister
• a notary public
• a Jurat of the Royal Court of Jersey
• an advocate or solicitor of the Royal Court of Jersey
• a barrister admitted to the Bar of England and Wales, a solicitor of England and Wales or persons similarly qualified under the laws of any other jurisdiction
• a registered and practising medical practitioner, for example your doctor
• a registered and practising health care professional, for example a social worker, psychologist, psychiatrist or a community nurse
• a minister of religion
• a practising member of the Jersey Society of Chartered and Certified Accountants (or of an equivalent professional body in another jurisdiction)

The witness must not:

• be related to the donor by birth or marriage
• be in a personal relationship with the donor or any other family member
• live at the same address as the donor
• be the manager or an employee of the care home in which you reside

By witnessing your signature, your witness confirms that:

• you understand the document that you are signing
• you haven’t been pressured into making the document
• there is no other reason for concern

If you would like to apply to the Court on a single matter, for example, to obtain the Court’s permission to sell or put a bond against a property; or to make a gift of the Person’s property, you will need the following:

Documents	Notes
Application form for property and financial affairs matters (DP02)	A completed application form (DP02), where a single or limited property and affairs decision is required to be ordered or authorised by the Court.
Practitioner's Assessment of Capacity form (DP05)	A person must be assumed to have capacity unless it is established that they lack capacity. The Court will need to be satisfied that the person for whom a Delegate is to be appointed lacks capacity to consider the specific decision(s). This form must be completed by a registered practitioner, for example, a general practitioner (GP); a medical practitioner, social worker, psychologist, psychiatrist, or an approved mental health practitioner who is registered with the Jersey Care Commission. If you are asking a practitioner to assess a Person’s capacity, they need to know exactly what decision they are evaluating.  For example, is the assessment about whether the person can manage their own finances and property?  The discussion during the assessment will focus on the specific decision being evaluated.
Supporting paperwork	The protection team at the Judicial Greffe will be able to suggest supporting documents relevant to your application that will assist the Court with its decision.  For example: A copy of your Act of Appointment as delegate or LPA if you are an attorney If you wish to sell a property three valuations of the property from local estate agents; a rental valuation were the property to be brought up to a rentable standard If you wish to make a gift to a family member- out of the Person’s property, evidence that the Person has helped the individual previously when they had capacity
Letters of consent	If the Person on whose behalf you are submitting the application has immediate family members, such as a spouse or children (and if none of those brothers and sisters) then we require letters from those individuals confirming that they are aware of, and consent to, the application
The application fee	This is £160.00 broken down as follows: £120 Court receipt and £40.00 of Jurat Stamps. Please telephone the Judicial Greffe on (01534) 441360 for payment information

If you have any questions, telephone the Judicial Greffe on (01534) 441360 or email jgrprotection@courts.je who will be happy to help you.

Raising concerns about a delegate or attorney

Raising concerns about a delegate or attorney

Jersey LPAs are designed for use within the Island.  Their recognition outside of the Island of Jersey will depend on the laws of the other jurisdiction. 

If you have UK assets (such as shares or a UK bank account) you can make and register a UK LPA with the Office of the Public Guardian to deal with those assets.  Otherwise your attorney might need to apply to the UK Court of Protection asking that it recognises the Jersey LPA.   

Attorneys cannot just do what they want, they must always follow the principles of the Law and act in the donor’s best interests.  They must:

• assume that the donor can make their own decisions unless it is established that they cannot
• help the donor make as many of their decisions as they can.  They must take all practical steps to help the donor to make a decision.  They can only treat the donor as unable to make a decision if they have not succeeded in helping them make a decision through those steps
• not treat the donor as unable to make a decision simply because they make an unwise decision
• act and make decisions in the donor’s best interests when they are unable to make a decision
• before making a decision or acting for the donor, consider whether they can make the decision or act in a way that is less restrictive of the donor’s rights and freedoms but still achieves the purpose.

When can you start making decisions?

As a health and welfare attorney, you make (or help the donor make) decisions about things like:

• daily routine, for example washing, dressing and eating
• medical care
• where the donor lives

You can only make decisions for the donor when they don’t have the capacity to make them themselves.

You must tell people involved in the donor’s care when you start making decisions. This includes, for example, the donor’s:

• friends and family
• doctor and other healthcare staff
• care workers, social worker and other social care staff

You may need to use your lasting power of attorney to prove to staff that you can act for the donor.

Keep records

Keep a record of important decisions you make and when.  For example, agreeing to medical treatment.  Include details of who you asked for advice.

You do not need keep a record of small, everyday decisions.

Using the donor’s money

You might need to spend the donor’s money on things that maintain or improve their quality of life. This can include:

• new clothes or hairdressing
• decorating their home or room in a care home
• paying for extra support so the donor can go out more, for example to visit friends or relatives or to go on holiday

Keep your receipts and invoice the donor for your expenses. You must ask for money from the person in charge of the donor’s finances.

Refusing or consenting to treatment

Check the lasting power of attorney (LPA) for instructions about refusing or consenting to treatment.

You’ll need to:

• show the LPA to care staff
• sign medical consent forms
• make decisions in the donor’s best interests

You cannot always make decisions about the donor’s medical treatment, for example if the donor has made an advanced decision to refuse treatment (an ADRT) or has been sectioned.

Advance decisions to refuse treatment (ADRT)

This is a legal statement from the donor about which medical treatments they do not want.  If the donor has made an ADRT, you’ll need to give this to care staff along with the LPA.

Apply to the Royal Court for a one-off decision

You might need to apply for a one-off decision from the Royal Court to make a decision about a medical treatment if:

• the ADRT and LPA give different instructions
• the medical staff or the donor’s friends and family disagree about whether the treatment should be given

You may need legal advice and assistance for this.  A list of local law firms can be found at Lawyers and notaries (jerseylaw.je).

More information and helpful guidance on the Law and being an attorney can be found in the Capacity and Self-Determination (Jersey) Law 2016 Code of Practice

Attorneys cannot just do what they want, they must always follow the principles of the Law and act in the donor’s best interests.  They must:

• assume that the donor can make their own decisions unless it is established that they cannot
• help the donor make as many of their decisions as they can.  They must take all practical steps to help the donor to make a decision.  They can only treat the donor as unable to make a decision if they have not succeeded in helping them make a decision through those steps
• not treat the donor as unable to make a decision simply because they make an unwise decision
• act and make decisions in the donor’s best interests when they are unable to make a decision
• before making a decision or acting for the donor, consider whether they can make the decision or act in a way that is less restrictive of the donor’s rights and freedoms but still achieves the purpose

As a property and affairs attorney, you make (or help the donor make) decisions about things like:

• money, tax and bills
• bank accounts
• property and investments
• pensions and benefits

You can use the donor’s money to look after their home and buy anything they need day to day (for example, food).

When can you start making decisions

You can start making decisions while the donor still has capacity if both:

• the lasting power of attorney (LPA) says you can; and
• the donor gives you permission

Otherwise, you can only start making decisions when they do not have capacity to make the decision themselves. 

If the donor has a health and welfare attorney, you should talk to them about any decisions that impact the donor’s living arrangements, medical care or daily routine.  This will ensure the necessary finances are available.

Example

Before deciding whether to sell or rent out the donor’s home, discuss where the donor will live and the cost of their care and accommodation with their health and welfare attorney.

Looking after money and property

You must keep the donor’s property and finances separate from your own, unless you’ve already got something in both of your names, for example a joint bank account (in the case of a husband or wife) or you own your home together.

Managing the donor’s money and accounts

Banks and other organisations (such as utility companies and pension providers) will ask for proof that you are an attorney.  Use your lasting power of attorney to prove you can act for the donor.

You may need to provide other details, such as:

• your name, address and date of birth
• the donor’s name or address

You might also need to provide other information, such as an account number.

Spending money on gifts or donations

Unless the LPA states otherwise, you can spend money on:

• gifts to a donor’s friend, family member or acquaintance on occasions when they would normally give gifts (such as birthdays or anniversaries); and
• donations to a charity that the donor would not object to, for example a charity they’ve donated to before

You must apply to the Royal Court for any other type of gift or donation, even if the donor has given them before. These include:

• paying someone’s school or university fees
• letting someone live in the donor’s property without paying market rent (anything they pay below market rent counts as a gift)
• interest-free loans
• monetary gifts

You must check that the donor can afford the gift or donation, even if they’ve spent money on these types of things before.  For example, you cannot donate their money if that would mean they could not afford their care costs.

Buying and selling property

If you have decided that it is in the donor’s best interests to sell a property, but the donor has not given you the necessary authority in the LPA to transact in Court then, you will first need apply to the Royal Court for permission to sell the property. 

Keep records

Keep a record of:

• important decisions you make and when.  For example, selling or renting out the donor’s home.  Include details of who you asked for advice
• the donor’s assets, income and how you spend their money

You do not need keep a record of small, everyday decisions.

Expenses

You can only claim expenses for things you must do to carry out your role as an attorney, for example:

• hiring a professional to do things like fill in the donor’s tax return
• travel costs
• stationery
• postage

Keep your receipts and invoice the donor for your expenses.

Making a Will

You cannot change a donor’s Will.  If the donor cannot make or change their Will themselves, you must apply to the Royal Court to do it in their best interests (see practice direction RC 22-04).

You will need legal advice and assistance for this.  A list of local law firms can be found at Lawyers and notaries (jerseylaw.je).

More information and helpful guidance on the Law and being an attorney can be found in the Capacity and Self-Determination (Jersey) Law 2016 Code of Practice

You must tell the Judicial Greffe if:

• you or the donor change name or address
• the donor, or another attorney, dies
• you start acting as a replacement attorney
• you choose to stop acting as an attorney
• you must stop acting as an attorney

If you or the donor change name or address

You must tell the Judicial Greffe if you or the donor changes name and send a copy of the marriage certificate or deed poll that shows the new name.  Do not send any original documents.

You must tell the Judicial Greffe if you or the donor changes address, but you do not need to send any supporting documents.

Do not make changes to the LPA document itself, as it might become invalid.

If the donor or another attorney dies

You must tell the Judicial Greffe and send them the original LPA and any certified copies.

The Judicial Greffe will cancel the LPA if the donor dies, or if an attorney dies and either:

• the attorneys had to make all decisions together ( ‘jointly’)
• there was only one attorney

A cancelled LPA will be destroyed.  If you want the Judicial Greffe to send it back instead, include a note asking for its return along with a return address.

If an attorney dies and the attorneys were able to make any decisions on their own (called acting ‘jointly and severally’), the Judicial Greffe will update the LPA instead.  You must include a return address when you send the LPA.

If you start acting as a replacement attorney

You must let the Judicial Greffe know when you start acting as a replacement attorney. You’ll also need to send them:

• the original LPA
• all certified copies of the LPA, if any
• a return address for the Judicial Greffe to send your documents back to you

You’ll be able to start helping a donor make decisions as soon as the attorney you’re replacing stops acting.

Check the LPA to see if there are other attorneys you need to make decisions with after you start acting as an attorney.

If you must stop acting as an attorney

You must tell the Judicial Greffe if:

• You are a property and financial affairs attorney and you become bankrupt
• You’re married to, or in a civil partnership with, the donor and your relations ends, unless the LPA states that you can continue to act in that circumstance
• You’re an attorney making decisions Jointly and another attorney stops acting, unless the LPA says you can carry on making decisions

Even if your LPA has been registered, while you have capacity, you are still in control of managing your own affairs and there are several things you can do with your LPA:

• you can stop and cancel the LPA
• you can remove an attorney(s)
• you can appoint new attorneys.

However, once you can’t make decisions for yourself anymore (you lack capacity), your attorneys’ power cannot be taken back or changed.  They will keep their authority until you or they die, they go bankrupt, or they themselves lose capacity.

See below for how to:

• remove an attorney
• add an attorney or make a material change to an existing LPA
• cancel an LPA
• learn about other ways an LPA can end 

To remove an attorney

If you want to remove one of your attorneys from your LPA but keep the rest you can use an instrument of partial revocation to make this change. 

The process for removing an attorney is:

1. Prepare a revocation document
   • Prepare an instrument of partial revocation to remove the attorney.
   • Sign the instrument in front of a professional witness who will confirm that you understand the decision.
2. Inform the outgoing attorney
   • Notify the attorney that you are removing them from your LPA.  This can be done by letter or email.
   • Include a copy of this communication in your application
3. Submit the documents
   • Submit the completed revocation document to the Judicial Greffe
   • Include a cover letter, the original LPA and any copies, and a copy of your notice to the attorney

Once received, the Judicial Greffe will:

• Attach a note to the original LPA and any certified copies, stating that the attorney can no longer act.
• Update the register of LPAs to show that the attorney’s authority has been cancelled.
• Write to you (the donor), the removed attorney, and the remaining attorneys to confirm receipt of the revocation document.  They will also include a formal Court document (an Act of Court) confirming the change and send back the updated LPA, and any copies, to you.
• Once you receive the documents back, you or one of the remaining attorneys should show them to banks and other relevant organisations as necessary so they can update their records

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 [insert the 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 [insert the attorney’s name that you are removing from your LPA] 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. 
4. I enclose:
   • a copy of my communication with [attorney’s name that you are removing] informing [him/her] that I intend to apply or have applied to the Royal Court to revoke their appointment as my attorney; and
   • 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 professional witness] 

Full name of witness [name of your professional witness]

Address of witness [address of your professional witness]

Add an attorney or make a material change to an existing LPA 

If you want to make big changes to your current LPA, you’ll need to officially cancel it and create a new LPA that includes those changes.

The process for cancelling an LPA is:

1. Prepare a revocation document
   • Prepare an instrument of revocation to cancel the LPA (see below)
   • Sign the instrument in front of a professional witness who will confirm that you understand the decision
2. Inform the attorneys
   • Notify your current attorneys that you are cancelling your LPA, which means they no longer have the authority to make decisions for you.  This can be done by letter or email.
   • Include a copy of this communication in your application
3. Submit the documents
   • Submit the completed revocation document to the Judicial Greffe.
   • Include a cover letter, the original LPA and any copies, a copy of your notice to your attorneys and a new LPA application form showing your current wishes.
4. Pay the application fee
   • You can pay the application fee online or in person at the Judicial Greffe using a debit or credit card
5. The Judicial Greffe will
   • Update the register of LPAs to show that your existing LPA has been cancelled
   • Write to you (the donor) and all your attorneys to confirm receipt of the revocation document.  They will also include a formal Court document (an Act of Court) confirming that your LPA has been cancelled (revoked)
   • Register your new LPA application
   • Once you receive the new registered LPA documents back, you or one of your attorneys should show them to banks and other relevant organisations as necessary so they can update their records.

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. 
3. I enclose:
   • a copy of my communication with [attorney(s) name] 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 
   • 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 professional witness]

Full name of witness [name of professional witness] 

Address of witness [address of professional witness]

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­Cancel an LPA altogether

The process for cancelling an LPA in its entirety is:

1. Prepare a revocation document
   • Prepare an instrument of revocation to cancel the LPA (see below)
   • Sign the instrument in front of a professional witness who will confirm that you understand the decision
2. Inform the attorneys
   • Notify your attorneys that you are cancelling your LPA, which means they no longer have the authority to make decisions for you.  This can be done by letter or email.
   • Include a copy of this communication in your application.
3. Submit the documents
   • Submit the completed revocation document to the Judicial Greffe.
   • Include a cover letter, the original LPA, any certified true copies of the LPA and a copy of your notice to your attorneys
4. The Judicial Greffe will:
   • Update the register of LPAs to show that your existing LPA has been cancelled.
   • Write to you (the donor) and all your attorneys to confirm receipt of the revocation document.  They will also include a formal Court document (an Act of Court) confirming that your LPA has been cancelled (revoked)

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.
3. I enclose:
   1. a copy of my communication with [attorney(s) name] 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
   2. 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 professional witness] 

Full name of witness [name of professional witness] 

Address of witness [address of professional witness]

Other ways your LPA may end

An LPA may end if an attorney:

1. loses the ability to make decisions
2. 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
3. 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
4. is removed by the Royal Court of Jersey; or
5. dies

1) On the death of the donor

The lasting power of attorney (LPA) ends when the donor dies. You must report the death of a donor to the Judicial Greffe. 

2 ) Stop acting before the donor dies

You can choose to stop acting (retire) as an attorney.  There are also some cases in which the law requires you to stop acting as an attorney (see below).

If you choose to stop (retire) as attorney

Fill in and send a notification form to:

• • the donor and the Judicial Greffe
  • any other attorneys appointed on the LPA

What happens once you stop

Depending on the circumstances:

• • Joint and several attorneys:  If the attorneys were appointed to act jointly and severally, the remaining attorneys can continue to act.
  • Replacement attorneys:  If the LPA includes replacement attorneys, they will step in and take over the retired attorney’s responsibilities.
  • Joint attorneys:  If the attorneys were appointed to make decisions together (jointly), the remaining attorneys cannot continue to act and make joint decisions, unless the LPA states otherwise.  In this case, the LPA may become invalid.
  • No replacements:  If there are no replacement attorneys and you were the only (sole) attorney appointed in the LPA, the LPA will become invalid.  In this case, if the donor has capacity they may wish to make a new LPA.  If the donor no longer has the mental capacity to make an LPA then someone may need to apply to the Court to appoint a delegate to assist them.

3) When you must stop acting as attorney

You must stop acting as an attorney if:

• • the donor removes you off of their LPA - sometimes called ‘revoking’ an attorney
  • you lose mental capacity and cannot make decisions any more
  • you’re a property and financial affairs attorney and you become bankrupt
  • you’re married to, or in a civil partnership with, the donor and your relationship ends
  • you’re a joint attorney and another attorney stops acting, unless the LPA says you can carry on making decisions

Reporting responsibilities of a Delegate

The Law requires Delegates to fulfil certain administrative responsibilities. These are set out below.

An Inventory (Delegates for property and affairs only)

Delegates for property and affairs must submit an inventory of the person's property. This is a list of the assets belonging to the person that the Delegate now has responsibility for. It should be completed as at the date that the Delegate was appointed to the role and must be delivered to the Judicial Greffe within 3 months of the appointment date.

Attach these documents to the Inventory:

• Copy bank statements showing the account balances on the date of your appointment
• Copy investment statements showing the account balances on the date of your appointment
• Details of individual shareholdings held on the date of your appointment

Inventory of property and assets for delegates

Annual Plan and Report of Delegates actions and decision-making

Delegates must complete an annual plan and report, as at the anniversary date of the Delegate's appointment, each year. The form must be delivered to the Judicial Greffe within 3 months of the anniversary date of the Delegate's appointment. The form is split into distinct parts.

Backward looking	You must explain
	the decisions you've made as a Delegate the reasons for your decisions and why they were in the best interests of the person who you spoke to and what they said was in the Person's best interests
The person's current assets (Delegates for property and affairs only)	You must detail the assets belonging to the Person that you have responsibility for and their value as at the anniversary date of your appointment as Delegate
Forward looking	You must inform us of any significant decisions you expect to make during the coming year

Inventory For Professional Delegates.  Attach these supporting documents to the Inventory:

• Copy bank statements showing the account balances on the date of your appointment
• Copy investment statements showing the account balances on the date of your appointment
• Details of individual shareholdings held on the date of your appointment

Annual Report And Plan For Professional Delegates

The Capacity and Self-Determination (Miscellaneous Provisions and Prescribed Fees and Forms) (Jersey) Order 2018 (the Order) describes the way in which delegates for property and affairs may charge fees for acting as a delegate and is summarised below.

Delegates do not have to charge a fee if they don’t want to. However, the Order allows a fee to be charged if the Court has authorised that a delegate may be remunerated.  This is usually considered when a delegate is appointed, but a delegate can request the Court’s permission to receive remuneration later if required. 

Lay delegate

If you are a lay delegate (a spouse, family member or friend of the person lacking capacity) you are likely to have a close personal relationship with the person for who you act, and you may not want to charge a fee for acting as a delegate.

However, if the Court has allowed you to be paid, you may charge a fee based on the person’s income if you want to, as follows:

Income of the person	Percentage fee that may be charged
Gross annual income does not exceed £10,000	5%
Gross annual income exceeds £10,000 but does not exceed £25,000
On the first £10,000	5%
On the balance between £10,001 and £25,000	3%
Gross annual income exceeds £25,000
On the first £10,000	5%
On the balance between £10,001 and £25,000	3%
On the amount exceeding £25,001	2.5%

For the purposes of calculating a delegate’s remuneration, ‘income’ might include:

• the person’s earnings
• personal and government pensions
• dividends
• bank interest and
• rental income

Income for the purpose of calculating a delegate’s remuneration does not include personal benefits received from Customer and Local Services department, such as:

• income support
• long-term care (LTC) allowance 
• long-term incapacity allowance (LTIA)

In special cases, a lay delegate can ask the Court for a higher fee than the usual percentage-based fee. The delegate must prove to the Court that managing the person's property required a lot of extra work and that this work was in the person's best interests. The Court can then decide on the payment of fees, including any time limits and other terms it thinks are necessary.

The fee charged by the lay delegate must be included in their annual report submitted by the delegate to the Judicial Greffe. The Judicial Greffe may question the calculation of the fee, if it appears to be incorrect.

Professional delegate

Subject to the direction of the Court, a professional delegate (such as a lawyer) can charge their professional fee when administering the person’s property and affairs. Any charged fee must be:

• in the best interest of the person
• reasonable
• in proportion to total value of the person’s assets and the amount of work done

Professional delegates may use administrative staff for routine matters such as making payments; however, they cannot delegate their decision-making authority to someone else. 

Discrepancies in estimated and actual fees

If the actual fees charged, as shown in the Annual Report to the Judicial Greffe, differs from the estimated fees, the delegate must explain why.  There are several reasons why actual fees charged might be higher than the estimated fees, for example:

• the person may have become unwell and unable to live in their own home, which may have had to be sold to fund fees in a nursing or care home; or
• there may be difficulties or complexities in managing the person’s property that were not obvious at the beginning of the appointment

The Judicial Greffe will compare the fees estimated and actual fees incurred for the relevant period and, if the actual fees vary from the estimated fees by more than a reasonable tolerance (what is “reasonable” will depend on the circumstances of the case, including the value and size of the person’s property), the Judicial Greffe will discuss the reasons with the delegate.  If the Judicial Greffe is not satisfied with the explanation, it may notify the Viscount of the discrepancy.

The Viscount may investigate and seek to resolve any dispute applying his regulatory powers. If the Viscount considers it appropriate, the question of the fees charged may be referred to the Court for approval retrospectively or for an order that the fees be reduced and a repayment be made to the person’s estate.

Reimbursement of expenses

Delegates can be reimbursed any reasonable out-of-pocket expenses and costs that they incur as a result of acting as a delegate, provided that the expense or cost was incurred by them in the best interests of the person.

End your delegation

 If you no longer want or need to be a delegate:

• Inform the Court: You must inform the Court in writing via the Judicial Greffe about your intention to retire; giving the reason for your decision and advising whether the Person continues to require a delegate
• Identify a Replacement: If the Person’s capacity is unchanged and they still require a delegate, you must, if possible, find a suitable person to replace you.  The Court will consider your resignation and the appointment of a delegate to replace you (if required) at the same time to ensure a continuation of support for the Person
• Supporting Evidence: If the Person’s capacity has recovered such that they can resume responsibility for managing their own property and financial affairs themselves, you must provide the Court with a capacity assessment to support your application to end the delegation
• Final Report: Once your resignation has been accepted by the Court you must, within 90 days, prepare and submit your final report to the Judicial Greffe detailing your management of the Person’s affairs up to your date of discharge
• Handover: You must hand over all relevant files and records to the new delegate or the Person themselves if they are now capable of managing their own affairs

If you have any questions, telephone the Judicial Greffe on (01534) 441360 or email jgrprotection@courts.je.