Powers of Attorney
(Jersey) Law 1995
A LAW to make new provision in relation to
powers of attorney
Commencement
[see
endnotes]
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“limited liability
company” means a limited liability company registered under the Limited
Liability Companies (Jersey) Law 2018, and includes a series
created within that limited liability company under Article 12 of that Law;
“registered”
means registered in the Public Registry and the expression “registrable”
shall be construed accordingly; and
“registrable power
of attorney” has the meaning given by Article 3(1).[1]
(2) In
Article 2, 6, 8 and 9, “power of attorney” does not include a
lasting power of attorney within the meaning given by Article 11 of the Capacity and
Self-Determination (Jersey) Law 2016.[2]
(3) In
this Law, “body corporate” does not include a limited liability
company registered as a body corporate.[3]
2 Powers of attorney
generally
(1) This
Article is subject to Article 3.
(2) A
power of attorney takes effect upon being duly executed, unless
the power of attorney states otherwise.
(3) Subject
to paragraph (4), a power of attorney, wherever executed, is duly executed
if it is signed by the donor, or acknowledged by the donor to have been signed
by the donor, in the presence of one witness who is not a party to the power of
attorney.
(4) A
power of attorney may be executed, without any further attestation –
(a) by a
body corporate, in the manner permitted by its articles of association;
(b) by
a limited liability company, in the manner permitted by its LLC agreement as
defined in Article 1(1) of the Limited Liability (Jersey) Law 2018.[4]
(5) A
power of attorney is not capable of being registered otherwise than in
accordance with Article 3.
3 Registrable powers of
attorney
(1) A
power of attorney (other than a lasting power of attorney created and
registered under Part 2 of the Capacity and
Self-Determination (Jersey) Law 2016) which is –
(a) intended to be used to effect a transaction
which is required to be registered; or
(b) required to be registered by any enactment
other than a provision of this Law,
is in this Law referred to
as a “registrable power of attorney” and any such power of attorney
shall not be exercisable to effect any such transaction or in connection with
the matters to which the enactment relates, as the case may be, until the power
has been registered.[5]
(2) A
registrable power of attorney shall, subject to paragraph (5), be duly
executed if it is signed by the donor, or acknowledged by the donor to have
been signed by the donor, in the presence of one witness who is not a party to
the power of attorney and who –
(a) if the power is executed in Jersey, is a
Jurat of the Royal Court, a member of the States, an advocate of the Royal
Court, a solicitor or a notary public; or
(b) if the power is executed outside Jersey, is
one of the persons mentioned in sub-paragraph (a) or one of the persons
specified in Schedule 1.
(3) The
following entities may execute a registrable power of attorney in the following
ways, but that execution is equivalent to signature only –
(a) a
body corporate, in the manner permitted by its articles of association;
(b) a
limited liability company, in the manner permitted by its LLC agreement.[6]
(4) An
application to register a registrable power of attorney shall be made to the
Royal Court and the power of attorney may be recorded by means of a copy of the
original made by photographic, electronic or any other means.
(5) The
Royal Court may accept as duly executed a registrable power of attorney which
is executed outside Jersey and attested by a witness other than a person
mentioned in paragraph (2)(a) or (b), either –
(a) if the Court is satisfied that, having
regard to the conditions prevailing at the time and place of signature, it was
not possible, without undue delay or expense, for the power of attorney to be
attested by one of such persons; or
(b) for such other reason as the Court may think
fit.
(6) For
the avoidance of doubt, it is declared that a registrable power of attorney is
not required to be recorded in any register other than the Public Registry.
(7) The
States may, by Regulations, amend Schedule 1.
3A Power of Attorney
signed by person other than donor
(1) Despite
Articles 2(3) and 3(2), a power of attorney (including a registerable
power of attorney) shall be valid when it has not been signed by the donor
if –
(a) the
donor declared in the presence of a qualified witness that, being physically
incapacitated to sign the power of attorney himself or herself, the donor
wished the power of attorney to be signed by another person on the
donor’s behalf;
(b) the
declaration by the donor and the date it was made are recorded on the face of
the power of attorney;
(c) the
power of attorney was read aloud to the donor (or, in the case of a deaf donor,
the whole contents of the power of attorney were made known to the donor by
some other means) in the presence of the person signing the power of attorney on
behalf of the donor and the qualified witness; and
(d) after
the power of attorney was read to the donor (or, in the case of a deaf donor,
after the whole contents of the power of attorney were made known to him or her
by some other means), it was signed by some other person on the donor’s
behalf in the presence of a qualified witness and that witness put his or her signature
to the power of attorney in the presence of the donor and that other person.
(2) A
person shall not be competent to sign a power of attorney on behalf of a donor
unless that person has the capacity to execute a valid will of his or her own.
(3) In
this Article, “qualified witness” means –
(a) if
the power of attorney is executed in Jersey, a person referred to in Article 3(2)(a);
or
(b) if
the power of attorney is executed outside Jersey, a person referred to in Article 3(2)(a)
or a person specified in Schedule 1.[7]
4 Proof of powers of
attorney
(1) A
power of attorney may be proved by means of a copy which –
(a) is a reproduction of the original made with
a photographic or other device for reproducing documents in facsimile; and
(b) contains the following certificate or
certificates signed by the donor of the power or by any person mentioned in Article 3(2)(a)
or (b), that is to say –
(i) a certificate at
the end to the effect that the copy is a true and complete copy of the
original, and
(ii) if
the original consists of 2 or more pages, a certificate at the end of each page
of the copy to the effect that it is a true and complete copy of the
corresponding page of the original.
(2) Where
a copy of a power of attorney has been made which complies with paragraph (1),
the power of attorney may also be proved by a copy of that copy if the further
copy itself complies with that paragraph, taking references in that paragraph
to the original as references to the copy from which the further copy is made.
5 Powers of attorney given
ancillary to security
(1) In
this Article –
“appropriate
Security Interests Law” means whichever Law applies to the relevant
security interest, being the Security
Interests (Jersey) Law 1983 or the Security
Interests (Jersey) Law 2012;
“bankruptcy”
includes any insolvency proceedings of a similar nature to bankruptcy in any
place outside Jersey;
“foreign law”
means any law other than the law of Jersey;
“security interest”
means, as the case requires, a continuing security interest to which, as
referred to in Article 1A of the Security
Interests (Jersey) Law 1983, that Law applies or a security
interest within the meaning of the Security
Interests (Jersey) Law 2012, and “security agreement”
and “secured party” have corresponding meanings.[8]
(2) Where
a power of attorney is expressed to be irrevocable and is given –
(a) for
the purpose of facilitating the exercise of powers of a secured party under the
appropriate Security Interests Law in respect of a security interest or of powers
given pursuant to a security agreement in respect of a security interest; or
(b) pursuant
to, in connection with, for the purpose of, or as ancillary to, security
governed by foreign law,
then, so long as the
security interest or security is effective, the power of attorney shall not be
revoked –
(i) in
any case, by the donor without the consent of the donee;
(ii) if
the donor is an individual, by his or her death, incapacity or bankruptcy; or
(iii) if
the donor is a body corporate or limited liability company, by its bankruptcy
or dissolution.[9]
(3) A
power of attorney to which paragraph (2) applies may be given to the
secured party or the person taking security governed by foreign law and persons
deriving rights under them respectively or to some person nominated by the
secured party or person taking security governed by foreign law and those
persons shall be duly constituted donees of the power of attorney for all the
purposes of the power but without prejudice to any right to appoint substitutes
given by the power.
(4) This
Article shall have effect notwithstanding any enactment or rule of law, in
force in Jersey or elsewhere, which vests property in any person on death,
bankruptcy or any other disability or incapacity and the donee of a power of
attorney to which paragraph (2) applies shall be entitled to act
thereunder as if the power of attorney had been given also by the person in
whom the property so vests.
(5) A
person acting under and in accordance with a power of attorney to which paragraph (2)
applies shall not be guilty of an offence under Article 23 of the Probate (Jersey)
Law 1998.
6 Protection of donee and third
persons in certain circumstances where power of attorney is revoked
(1) In
this Article –
“bankruptcy”
includes any insolvency proceedings of a similar nature to bankruptcy in any
place outside Jersey;
“purchaser”
means any person (including a lessee under a lease or a hypothecary creditor or
secured party) who otherwise than gratuitously takes any interest in immovables
or movables, and “purchase” has a corresponding meaning; and
“secured
party” has the same meaning as in Article 5.[10]
(2) A
donee of a power of attorney who acts in pursuance of the power at a time when
it has been revoked shall not, by reason of the revocation, incur any liability
(either to the donor or to any other person) if at that time the donee did not
know that the power had been revoked.
(3) Where
a power of attorney has been revoked and a person, without knowledge of the
revocation, deals with the donee of the power, the transaction between them
shall, in favour of that person, be as valid as if the power had then been in
existence.
(4) Subject
to paragraph (6), in the case of a power of attorney to which Article 5(2)
applies, a person dealing with a donee shall be entitled to assume that the
power is incapable of revocation except by the donor acting with the consent of
the donee and shall accordingly be treated for the purposes of paragraph (3)
as having knowledge of the revocation only if the donee knows that it has been
revoked in that manner.
(5) Where
the interest of a purchaser depends on whether a transaction between the donee
of a power of attorney and another person was valid by virtue of paragraph (3),
it shall be conclusively presumed in favour of the purchaser that that person
did not at the material time know of the revocation of the power
if –
(a) the transaction between that person and the
donee was completed within 12 months of the date on which the power came into
operation; or
(b) that person makes an affidavit, before or
within 3 months after the completion of the purchase, stating that the person
did not, at the material time, know of the revocation of the power.
(6) Without
prejudice to paragraph (4), for the purposes of this Article knowledge of
the revocation of a power of attorney includes knowledge of the occurrence of
any event (such as the death of the donor) which has the effect of revoking the
power.
(7) This
Article applies whenever a power of attorney was created but only to acts or
transactions after this Law comes into force.
(8) This
Article shall have effect notwithstanding –
(a) Article 19 of the Probate (Jersey)
Law 1998;
(b) any enactment or rule of law, in force in Jersey
or elsewhere, which vests property in any person on death, bankruptcy or other
disability or incapacity.
(9) A
donee of a power of attorney who acts under and in accordance with paragraph (2)
and a person who deals with the donee of a power in the circumstances described
in paragraph (3) shall not be guilty of an offence under Article 23
of the Probate (Jersey)
Law 1998.
7 Effect of general power
of attorney in specified form
(1) Subject
to Articles 2 and 3 and paragraph (2), a general power of attorney in
the form set out in Schedule 2 or in a form to the like effect expressed
to be made under this Law shall confer –
(a) on the donee of the power; or
(b) if there is more than one donee, on the
donees acting jointly or severally, as the case may be,
authority to do on behalf
of the donor anything the donor can lawfully do by an attorney.
(2) This
Article does not apply to functions which the donor has as a trustee or
personal representative.
8 Substitute attorneys
(1) An
attorney may, if so authorized in the power appointing the attorney, appoint a
substitute by means of a power of attorney, but not otherwise, and the
substitute may exercise the powers of the original attorney to the extent
authorized in the power appointing the attorney.
(2) A
power of attorney which appoints a substitute attorney cannot be used to effect
a registrable transaction until both the original power of attorney and the
substitute power have been registered.
9 Revocation and
abandonment of power of attorney
(1) Subject
to Articles 5 and 10 and paragraph (4), a power of attorney may be
revoked or abandoned by a document conforming generally to whichever of the
forms in Schedule 3 is applicable and executed in the same manner as is
required for the creation of a power of attorney under this Law.[11]
(2) The
revocation or abandonment of a power of attorney revokes any appointment of a
substitute attorney made thereunder.
(3) Any
document executed in pursuance of paragraph (1) which relates to a
registrable power of attorney which has been registered is of no effect until
it has been registered.
(4) In
addition to a power of attorney to which Article 5(2) applies, a power of
attorney may be expressed to be incapable of revocation by the donor of the
power for any period not exceeding one year from the date on which it is
granted or the date on which it comes into effect, whichever is the later.
(5) A
power of attorney, other than a power to which Article 5(2) applies, which
is granted after the coming into force of this Law is revoked by the death,
incapacity or bankruptcy of the donor or, if the donor is a body corporate or
limited liability company, by its bankruptcy or dissolution.[12]
10 Saving
Nothing in this Law –
(a) shall
be taken as overruling any provision of the customary law relating to powers of
attorney, except insofar as any such provision is inconsistent with this Law;
(b) affects
the laws and customs of Jersey relating to the naming of an attorney without
whom the donor may not transact in matters real or personal or relating to the
repeal or abandonment of such a power of attorney;
(c) affects
the validity of a power of attorney passed before the Bailiff and 2 Jurats or
registered in the Royal Court before the coming into force of this Law.
11 Citation
This Law may be cited as the Powers of Attorney (Jersey)
Law 1995.