At some point in all of our lives, it is likely that we will need assistance with our financial affairs, whether it is paying our bills, maintaining our investments or managing our finances more generally.
While you have mental capacity (the ability to make your own decisions and choices) a Power of Attorney can be given to a trusted person (a family member, a friend or a lawyer) to carry out certain tasks on your behalf. A Power of Attorney is an authorisation to represent another person. It is important to note, however, that the loss of mental capacity automatically revokes a Power of Attorney.
The Capacity and Self Determination (Jersey) Law 2016 is anticipated to come into force in October 2018. This law will bring many welcome changes and will create a scheme of legal principles and safeguards relating to decisions made by and on behalf of persons who lack capacity to make decisions themselves. The law is aimed at empowering people to make their own decisions and to encourage them to consider and plan ahead for a time when they are no longer able to do so.
The law will enable anyone over the age of 18 years and with mental capacity to put in place two types of Lasting Powers of Attorney (‘LPA’); one to deal with health and welfare matters and another for property and financial matters. A health and welfare LPA would typically cover decisions relating to, for example, medical treatment, accepting or refusing types of health care or life sustaining treatment, and whether the donor (the person giving the LPA) continues to live at home or moves into residential care. A property and financial LPA would be used to make decisions such as paying the donor’s bills, collecting and dealing with the donor’s benefits or selling the donor’s property. LPAs differ from standard Powers of Attorney in that they are not revoked by a loss of mental capacity.
LPAs will reform the way that you can currently plan for your future and will allow you to appoint someone you trust to effectively step into your shoes.
- What happens until the new law comes in?
In the absence of the new law, Jersey residents cannot put in place an LPA and can only give a Power of Attorney if they have capacity. If they lose capacity, then it would be necessary for an application to be made to the court to appoint a curator. A curator is a person that manages the financial affairs of another who is deemed to be incapable of doing so.
Under the new law, the curatorship system will be replaced with a delegate system. A delegate’s appointment can be limited by the court in terms of the scope of the decisions they can make and the length of time they can carry out the role, which is more restrictive than the current curatorship system. Appointing an LPA on the other hand avoids such limitations.
- What to do when the new law comes in
Once the new law is in force, I would encourage anyone thinking about their will or their future to consider whether they would like to put an LPA in place. If you lose mental capacity, it will be too late to grant an LPA, so it is important to put your plans in place as early as possible. It would also be wise to consider who you would trust to be your attorney and what powers you would wish them to have. If you become unable to make decisions yourself without having an LPA in place, no one will have the power to act on your behalf and appointing a delegate will be the only available option. If you would like to know more please contact me on 632263 or by emailing zoe.blomfield@viberts.com.
