Capacity and
Self-Determination (Miscellaneous Provisions and Prescribed Fees and Forms)
(Jersey) Order 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, and of Regulations 15 and 18 of the Capacity and Self-Determination
(Supervision of Delegates etc.) (Jersey) Regulations 2018, orders as follows –
Commencement [see endnotes]
1 Interpretation
In this Order –
“Law” means the Capacity and Self-Determination (Jersey)
Law 2016;
“Regulations” means the Capacity and Self-Determination (Supervision of
Delegates etc.) (Jersey) Regulations 2018.
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 –
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“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.”.
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(3) The information
mentioned in paragraph (1) and prescribed for the purposes of
paragraph 1(1)(b) is as follows –
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“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.”.
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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;
(h) a person registered
under the Health Care (Registration) (Jersey) Law 1995;
(i) a minister of
religion;
(j) such other
person, of a similar standing to those described in sub-paragraphs (a) to (i),
as the Judicial Greffe may consider appropriate;
(k) in relation to a
statement referred to in paragraph 1(1)(b) of Part 1 of the Schedule to the
Law, a person who is over the age of 18 and has known A for 2 or more years.[1]
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.
5A Period
prescribed for objections to registrations[2]
(1) The period prescribed
under paragraph 5(1)(b) of Part 2 of the Schedule to the Law is
10 working days beginning with the day after the day on which the notices
referred to in paragraph 2 of the Schedule to the Law is given to each of
the persons mentioned in that paragraph.
(2) Where each notice is
not given on the same day, the period begins with the day after the day on
which the later or latest of the notices were given.
(3) In this Article
“working day” means any day other than –
(a) a
Saturday or Sunday;
(b) Christmas
Day or Good Friday; or
(c) a day
that is a public holiday under the Public Holidays and Bank Holidays (Jersey)
Act 2010.
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 –
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Gross annual income of P
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Percentage of such income which may be charged
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Not exceeding £10,000
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5%
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£10,001 or over, but not exceeding £25,000:
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–
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on first £10,000
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5%
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–
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on the amount between £10,001 and £25,000
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3%
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£25,001 or over:
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–
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on first £10,000
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5%
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–
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on the amount between £10,001 and £25,000
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3%
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–
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on the amount exceeding £25,001
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2.5%
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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;
(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.
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 –
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Form 1
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Notice acknowledging application for registration of lasting power
of attorney (Schedule, Part 2, paragraph 2)
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Form 2
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Notice to P of registration of health and welfare lasting power
attorney (Schedule, Part 2, paragraph 6)
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Form 3
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Notice to P of registration of property and affairs lasting power
attorney (Schedule, Part 2, paragraph 6)
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Form 4
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Notice to A of registration of health and welfare lasting power
attorney (Schedule, Part 2, paragraph 6)
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Form 5
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Notice to A of registration of property and affairs lasting power
attorney (Schedule, Part 2, paragraph 6)[3]
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12 Citation
This Order may be cited as
the Capacity and Self-Determination (Miscellaneous Provisions and Prescribed
Fees and Forms) (Jersey) Order 2018.