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Guidance for attorneys and delegates

For all

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.

LPA related

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.

Delegate related

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

Attach an income and expenditure report with or without a balance sheet, together with any other documents that will be helpful for the Court to know, to the Annual Report and Plan. These documents form part of the Annual Report and Plan.

Annual report form for delegates

Example of a simple income and expenditure report

Supervision of Delegates

Delegates are accountable to the Court. The Court can cancel a Delegate’s appointment at any time if it decides the appointment is no longer in the best interests of the person who lacks capacity.

The Viscount is responsible for supervising Delegates. However, the Viscount must also protect people lacking capacity from possible abuse or exploitation. Anybody who suspects that a Delegate is abusing their position should contact the Viscount immediately.

The Viscount will consider carefully any concerns raised against Delegates.