02 August 2016

Capacity and Self Determination (Jersey) Law 201-: A step too far?

It is proposed that in 2018 a new law to be known as the Capacity and Self Determination (Jersey) Law (“the Law”) will be introduced to assist those who no longer have capacity to deal with their affairs, to include, but not limited to, replacing the current Curatorship system with a Delegate system. Solicitor Marianne Shaw at Le Gallais and Luce is aware that the new Law will have far reaching implications for members of the public, as well as service providers such as banks who will have to understand and implement the Law.

Miss Shaw  “I believe that aspects of the new Law will be of great benefit to islanders as it will permit them – for the first time – to effectively plan for their future in the event that they lack capacity. It is also proposed that the new Law will seek to protect the dignity and well-being of individuals who no longer retain capacity to deal with their affairs, whether personal or financial, whilst in addition providing for those who still have capacity by allowing them to plan for the future e.g. by preparing and registering a Lasting Power of Attorney. The ethos of the new Law is to promote the well-being of individuals by respecting their wishes and acting in their best interests, but, I question whether such a philosophy is not already in existence under current Power of Attorney and Curatorship arrangements.   Following a review of the Law I think that there are a number of practical issues which need to be addressed if the Law is to be a viable piece of legislation.”

Miss Shaw’s initial concerns on the draft Law are that it has the potential to be excessively cumbersome to administer, with the result being that: “it will lead to increased administration costs; it will cause lengthy delays; and it is likely to cause confusion to service providers and other individuals who are required to understand and implement the Law – something which cannot be in the best interests of the parties concerned. I realise that if the new Law is to be an effective piece of legislation from a practical point of view it is vital that service providers (e.g. the hospital, GPs, banks) understand the Law and are able to implement the provisions in an efficient manner.” Miss Shaw notes that as the Mental Health (Jersey) Law 1969 (the current law governing the administration of Curatorships) approaches its 47th year of implementation, service providers are still failing to understand the basics e.g. who is the Curator and who is the Interdict (the person who is under Curatorship), and notes that without significant training on the new Law service providers will be unable to cope with its implementation, leading to: long delays; increased expense; and the opportunity for mistakes to be made.

Of increased concern to Miss Shaw is the scope under the new Law for far reaching powers to be seemingly actioned unregulated and unchecked. The Law even goes as far as providing that the Royal Court would have the power to make a will for a person who no longer retains capacity to do so for themselves. Under the present Mental Health Law a Curator is required to file an inventory at the start of the Curatorship and file annual accounts with the Court.  Furthermore, the Court’s consent must be sought in order to perform certain activities such as selling immovable estate.  Miss Shaw recognises that such provisions are welcome safeguards, not only to the Interdict, but also for the Curator.  “The lack of safeguards under the proposed Law is likely to be harmful to the Attorney and Delegate relationships, leaving the system open to abuse particularly from a financial perspective.”

In summary, Miss Shaw states “it is highly commendable that the new Law is seeking: to protect the vulnerable in our society; to look after their well-being; and to take their interests into account. However, by loosening the regulatory reigns which are in existence under present arrangements is the new Law a step too far, allowing individuals greater power to manage people’s personal and financial affairs with less regulation?”

“It is true that elements of the new Law are an improvement on existing arrangements e.g. allowing people to plan for their futures while they still retain capacity to do so. It is also commendable that the aim of the new Law is to promote the well-being of the individual and to respect his/her wishes and to act in his/her best interests.  However, the reach of the new Law is extensive, granting significant powers to single or multiple individuals which can be largely undertaken without regulation, and which without questioning could result in an abuse of power.  The additional provisions of the new Law e.g. permitting multiple persons to act as a delegate for different areas such as personal or financial matters, make the proposed Law potentially unworkable from an administrative perspective resulting in added expense, which cannot be in an individual’s best interests.”