Lasting power of attorney (LPA)

Introduction

A person’s capacity can become impaired, losing the ability to make decisions at the time they need to be made. There are any number of reasons why a person's capacity may become impaired, these could include health problems, illness or injury.

The Capacity and Self-Determination (Jersey) Law 2016 (CSDL) came into force on 1 October 2018. It is aimed at empowering people to make their own decisions for as long as possible and protecting them when they no longer can. The CSDL does this by allowing for the appointment of delegates or attorneys to make decisions on your behalf.

The Capacity and Self-Determination (Jersey) Law 2016 Code of Practice provides guidance in using the Law. Delegates and attorneys have a legal duty to have due regard to it when caring for people who may lack capacity to make decisions for themselves.

Capacity and Self-Determination (Jersey) Law 2016 Code of Practice

What a lasting power of attorney (LPA) is

A lasting power of attorney (LPA) is a legal document that lets you (the 'donor') appoint 1 or more people (known as 'attorneys') to help you make decisions or to make decisions on your behalf.

This gives you more control over what happens to you if you have an accident or an illness and can't make your own decisions because of an impairment that is affecting your thinking (you 'lack capacity').

'Capacity' means the ability to make a decision, at the time it needs to be made. A person with capacity has some understanding of the decision they need to make. They also need to know why they need to make it and the likely consequences. Sometimes people have capacity to make some decisions but not others. For example, a person might be able to decide what to wear or eat but are not able to make decisions regarding their care.

An LPA helps you control decisions that affect you, even when you cannot make them yourself. It allows you to plan and choose:

what decisions you want to be made on your behalf
who will make those decisions
how you want them to make those decisions

You can only make an LPA for Jersey, other countries may not recognise it. We can register some non-Jersey LPAs giving them legal effect in Jersey. Contact the Judicial Greffe for further information.

Types of LPA

There are 2 kinds of LPA, covering 2 kinds of decisions:

property and financial affairs dealing with money, finances and property. (managing a bank account, paying bills, ensuring that you receive pensions and benefits that are due to you and (if you allow it) to make decisions in respect of your home)
health and welfare dealing with your personal health and care. (your daily routine and medical care, where you should live and (if you allow it) life sustaining treatment)

Some people choose to make 1 type of LPA, while others choose to make both. If you want to make an LPA for both property and affairs and health and welfare you'll need to complete two separate applications.

Helping another person, friend or relative to make an LPA

If you are helping another person, a friend or relative to complete an LPA online, that person must make all the choices when making the LPA. If they can no longer make these choices independently, you cannot make an LPA for them. In this circumstance, you can contact the Judicial Greffe who will assist you apply to the Royal Court to appoint someone (a delegate) to assist them.

People you must have to make an LPA

The donor

An LPA is for just 1 person. You can make an LPA if you are:

At least 18 years old
You have the capacity to do so

'Capacity' means the ability to make a specific decision at the time it needs to be made. A person with capacity must be able to:

understand the decision they need to make
understand why they need to make it
understand and retain any information relevant to the decision
understand the likely consequences of the decision and
communicate what they wish to happen (the decision)

The attorney(s)

The people you choose to act for you are called attorneys. An attorney should agree to being appointed before you name them in your LPA. Attorneys don't need to be solicitors. You can ask anyone with capacity aged 18 or over to be your attorney, including:

your wife
husband
civil partner
partner
other family members
friends
people you trust; or
a professional, such as a solicitor or an accountant. Professional attorneys usually charge fees

If you choose your spouse, civil partner or partner to be your attorney and your relationship breaks up they usually have to stop being your attorney unless your LPA states that they can continue to be your attorney in that circumstance.

If a person is bankrupt they cannot be appointed an attorney for property and financial affairs. If an attorney becomes bankrupt following their appointment they can no longer be your attorney under your LPA for property and financial affairs. They can be appointed an attorney for health and welfare.

You must have at least 1 attorney. There is no upper limit but too many attorneys could make things difficult as they will need to work together.

Make sure that each person agrees to be your attorney before you name them in your LPA.

When selecting attorneys, think about:

how many you want to appoint and if they'll be able to work together
whether you trust them to act in your best interests
how well they know each other and how well they understand you
how willing they'll be to make decisions for you
how well they organise their own affairs, such as how well they look after their own money

Don't feel you have to choose someone just because you don't want to offend them. If you want them to feel involved, you could make them a 'person to notify' instead.

The donor's witness

The donor's witness is an impartial person who confirms that you understand what you're doing and that nobody is forcing you to make an LPA. They must confirm that:

you understand the significance of the LPA
you have not been put under pressure to make it
there has been no fraud involved in making the LPA
there is no other reason for concern

They should discuss your LPA with you before they watch you sign the LPA and before they witness your signature.

The donor's witness must be at least 18 years old and should be a member of 1 of the following professions:

a member of the Government of Jersey Assembly e.g. a Parish Constable, Deputy or a Minister
a Notary Public
a Jurat of the Royal Court of Jersey
an advocate or solicitor of the Royal Court of Jersey
a barrister admitted to the Bar of England and Wales, a solicitor of England and Wales or persons similarly qualified under the laws of any other jurisdiction;
a registered medical practitioner e.g. your doctor
a registered health care professional e.g. a social worker, psychologist, psychiatrist, community nurse
a minister of religion
a member of the Jersey Society of Chartered and Certified Accountants or of an equivalent professional body in any other jurisdiction

A manager or an employee of a care home in which the donor lives cannot be their witness.

The witness must be impartial and must not:

be related to the donor by birth or marriage
be in a personal relationship with the donor or any other family member
live at the same address as the donor

The attorney's witness

Your attorneys (and any replacement attorneys) must sign and date your LPA application and their signature(s) must be witnessed.

The witness for an attorney or replacement attorney can be an independent and impartial person who has known the attorney or replacement attorney for 2 years or more OR be a member of 1 of the professions who can act as a witness for the donor.

You may choose to include replacement attorneys or people to notify in your LPA.

Replacement attorneys

Replacement attorneys are people you choose to step in if 1 of your original attorneys can no longer make decisions on your behalf.

A replacement attorney will step in if 1 of your attorneys:

dies
loses capacity
decides they no longer want to act on your behalf
was your wife, husband, civil partner or partner but your relationship has ended (unless you've added an instruction in the LPA for them to continue)
becomes bankrupt (property and affairs LPAs only)

A replacement attorney can only act if the original attorney they're replacing is permanently unable to make decisions for 1 of the reasons above.

They cannot temporarily stand in for an attorney who is still able to act (for example, while the first attorney is on holiday).

Replacement attorneys usually step in as soon as 1 of your original attorneys stop acting for you unless you have:

appointed your attorneys to act jointly and severally
stated the order in which your original attorneys will be replaced

If you have 1 original attorney and multiple replacement attorneys then you need to decide how you would like your replacement attorney to make decisions for you.

Replacement attorneys must inform the Judicial Greffe as soon as they step in.

Appointing replacement attorneys means that your LPA should still work if an original attorney can no longer act on your behalf.

Without a replacement attorney, if you have only 1 attorney and that attorney can no longer act for you your LPA will no longer work. If your LPA can't be used and you don't have capacity, someone you know will have to apply to the Judicial Greffe to be granted the power to act on your behalf (a delegate).

People to notify

A 'person to notify' is someone you choose to inform about the registration of your LPA. You don't need to choose anyone to notify.

Letting people know about your LPA before you register it provides extra security. It gives people you know well a chance to raise concerns. You don't have to choose any people to notify to make your LPA valid, it's an optional extra precaution.

You can choose up to 5 people to notify but they can't be your attorneys or replacement attorneys. Many donors choose family members or close friends.

Talk to the people you intend to notify before you name them and explain that:

they don't have to do anything right away
we will notify them when you apply to register your LPA
they do not have to do anything when we contact them unless they have concerns
we will notify them when your LPA has been registered

A person to notify can object to an LPA's registration if:

you or an attorney is bankrupt (this only applies to property and financial affairs LPAs)
you or an attorney has died
your marriage or civil partnership with an attorney has been legally ended
an attorney doesn't have the capacity to be an attorney
they believe you don't have the capacity to make an LPA
they believe there was fraud or undue pressure on you to make the LPA

Attorneys responsibilities

What attorneys must do

Attorneys can make some decisions on your behalf, but they can't just do what they want. They must always follow the principles of the Law and act in your best interests.

Capacity and Self-Determination (Jersey) Law 2016 Code of Practice goes into this much more fully. It sets out five basic principles that an attorney must follow when working out whether and how to act on your behalf:

your attorneys must assume that you can make your own decisions unless it is established that you cannot do so
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
your attorneys must not treat you as unable to make a decision simply because you make an unwise decision
your attorneys must act and make decisions in your best interests when you are unable to make a decision
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 freedoms but still achieves the purpose

What attorneys can do

Your attorneys can only make decisions that you have allowed them to make in your LPA. For example, if your LPA is for your financial decisions, your attorneys can't make decisions about care or daily routine. If your LPA is for your health and welfare, they can't make decisions about your money.

When can your attorneys make decisions?

Property and financial affairs LPA

If you want your attorneys to help you with your finances whilst you have capacity you can choose that the LPA can be used as soon as it is registered. For example, if you can't leave the house or it's hard to talk to your electricity supplier, you might ask your attorneys to deal with the bank or pay bills. You could ask your attorneys to act for you if you were away, for example, on holiday. If you later lose capacity to manage and make decisions on your financial affairs yourself then your attorneys can make decisions for you using the LPA.

As long as you have capacity, you are in control your finances and affairs.

If you do not want your attorneys to assist you manage your property and financial affairs whilst you have capacity, you can choose that your financial LPA will take effect and your attorneys will only be able to act for you only when you don't have capacity to make decisions for yourself.

Health and welfare LPAs

Your attorneys can only act for you when you don't have capacity to make health and welfare decisions for yourself.

How can your attorneys make decisions

Solely: if you have chosen to appoint only 1 attorney

If you choose to appoint a single attorney then they will make all decisions on your behalf when you are unable to make them yourself. When completing the online application form, you must choose that your attorney is to act 'Solely'.

Where you choose to appoint more than 1 attorney

If you choose to have more than 1 attorney acting for you, you must decide how you want them to make decisions. Your options are:

Jointly and severally (attorneys act either together or alone)

your attorneys can make decisions on your behalf on their own or together.
any action taken by any attorney alone is as valid as if they were the only attorney.
it's up to your attorneys to choose how they make decisions but they must always act in your best interests and make every effort to find out whether you can make a decision before they make it for you.

Most people choose this option because:

attorneys can make simple or urgent decisions quickly and easily, and
if an attorney can no longer act, the LPA will still work. 1 attorney can still make decisions for you without asking your other attorneys.

If you choose this option, you must not say anywhere else in the LPA that certain decisions must be made by:

1 particular attorney
some or all your attorneys
a certain number of attorneys

You can say how you'd like your attorneys to make a particular decision in the preferences section of your LPA. Attorneys don't have to follow your preferences but will take them into account.

Jointly (attorneys must agree every decision together)

Your attorneys must always make all decisions together. They must all agree and they must all sign any relevant documents. Choose this option if you want your attorneys to agree on every decision, regardless of how large or small it is.

With this option:

if your attorneys can't agree on a joint decision, they can't make it
if your attorneys can't work together, your LPA won't work
if 1 attorney can no longer act or dies, your remaining attorneys won't be able to make any decisions and your LPA will stop working. (This isn't the case if you've appointed replacements)

Jointly for some decisions, and jointly and severally for other decisions

Your attorneys must make certain decisions together and all agree them. But they can make other decisions by themselves.

You will write in the instructions area of your LPA which decisions must be made jointly. For all other decisions, attorneys do not need to consult each other or agree on decisions.

Sometimes people don't mind their attorneys taking small decisions alone, for example, paying the bills. But they want them to make important decisions together, such as selling a house. You might wish to appoint health and welfare attorneys to act jointly and severally but specify that they must act jointly in relation to giving consent to surgery.

With this option:

if your attorneys can't agree on a joint decision, they can't make it
if 1 attorney can no longer act or dies, your remaining attorneys won't be able to make any of the joint decisions. (This isn't the case if you've appointed replacements)

Examples of working jointly for some decisions, and jointly and severally for others:

Property and financial affairs LPA:

'my attorneys must act jointly in relation to decisions about my house. They may act jointly and severally for everything else.'
('Everything else' means all financials decisions apart from ones about your house)
'my attorneys must act jointly when deciding about investments in stocks and shares. They may act jointly and severally for everything else.'
('Everything else' means all money matters apart from investing in stocks and shares)

Health and welfare LPA:

'my attorneys must act jointly in relation to decisions about where I live. They may act jointly and severally for everything else.'
'My attorneys must act jointly on decisions about life sustaining treatment. They may act jointly and severally for everything else.'

This range of options allows you to make an LPA that is right for you. If a person who has appointed two or more attorneys does not specify how they should act, the law states they must always act jointly.

Your attorneys must always act in your best interests. They must make every effort to find out whether you can make a decision before they make it for you. If you are not sure which option is best for your circumstances, you can get legal advice.

When attorneys can no longer act

An attorney cannot act for you if they:

lose capacity
decide that they no longer want to act as your attorney
become bankrupt and were an attorney for property and financial affairs
were your wife, husband, civil partner or partner but your relationship has ended and you have not indicated in your LPA that you are happy for them to continue to act as your attorney if your relationship has ended

Sometimes, if an attorney dies or has to stop acting for 1 of the reasons above, it can cause serious problems. For example, if you appointed only 1 attorney your LPA would stop working altogether. Consider appointing replacement attorneys to protect your LPA.

If you cancel your LPA, your attorneys can no longer act on your behalf.

The Judicial Greffe must be informed when an attorney can no longer act for you.

Assessing capacity

In order for your attorneys to establish whether or not you have capacity at the time of decision making they must take into consideration the following:

can you understand the information relevant to the decision?
are you able to retain the information for long enough to make the decision?
can you use or weigh up the information in the making of the decision?
can you communicate your decision by any means?

Banks and other financial institutions sometimes want written confirmation that a donor does not have capacity before they'll recognise an attorney's authority to act under an LPA. Your attorneys will be able to ask your GP, care co-ordinator, social worker or care home staff about obtaining a capacity assessment.

Preferences and Instructions

You can give your attorneys instructions or tell them of your preferences (your wishes) in the LPA, but you don't have to.

You can talk to your attorneys and explain how you'd like them to act for you. Your attorneys will then be free to make decisions they think are right, and they will know how you'd want them made.

Preferences

Preferences are what you'd like all your attorneys to think about when they make decisions for you. Your attorneys don't have to follow them but should bear them in mind.

If you write any preferences in your LPA, avoid words such as 'must' and 'shall'. Instead use words such as 'prefer' and 'would like', so it's clear that you're giving your attorneys advice.

Instructions

If your attorneys must do something, include it in your instructions. Instructions tell your attorneys what they must do when acting on your behalf. If you write any instructions, use words such as 'must', 'shall', and 'have to'.

Attorney's powers cease immediately upon the death of the donor as the LPA is then invalid. The LPA is not a replacement will and so should not include preferences or instructions that you would expect to see in a will. For example, funeral arrangements or the distribution of your assets following your death.

Life sustaining treatment (Health and welfare LPA)

Life sustaining treatment means care, surgery, medicine or other help from doctors that's needed to keep someone alive.

Life sustaining treatment can include:

a serious operation, such as heart bypass surgery
chemotherapy, radiotherapy or another cancer treatment
an organ transplant
artificial nutrition or hydration (food or water given other than by mouth)

You can choose for your attorneys to decide about life sustaining treatment in case you ever can't make the decisions yourself. If you choose to give your attorneys this power they can speak to doctors as if they are you.

If you do not wish for your attorneys to decide about life sustaining treatment then you may wish to make an Advance Decision to Refuse Treatment (ADRT) to ensure everyone knows the treatments you don't want to have if you're unable to make your own decisions in the future. Otherwise your medical or care practitioners will made decisions in your best interest if you ever can't make the decision yourself.

You can let your attorneys know your preferences, so that any decision that they make are as close as possible to the decisions you would have made. For example, you might write something like:

'If I were in the last days of a terminal illness, I would only want treatments to make me comfortable. I wouldn't want treatments to prolong my life or that meant I couldn't die at home.'

Attorneys should pay attention to your preferences for life sustaining treatment, although they don't have to follow them.

You don't have to give any preferences for life sustaining treatment, your attorneys can act without them.

You can write instructions to specify medical conditions where your attorneys must or must not consent to life sustaining treatment on your behalf. For example, you might write something like:

'my attorneys must not agree to life sustaining treatment if I am in a persistent vegetative state.'

You may feel that your attorneys understand you well enough and you don't need to write anything that contradicts what you have said elsewhere in your LPA or requires your attorneys to break the law. If you do, it could make your LPA unworkable. If you want to write instructions but are uncertain, you may want to seek legal advice.

You don't have to give instructions about life sustaining treatment.

You cannot allow or instruct your attorney to act illegally, this includes the bringing about your death in certain circumstances i.e. assisted suicide and euthanasia.

Gifts an attorney can make under a property and affairs LPA

An attorney can make gifts on your behalf of money or belongings to people who are related or connected with you (including the attorney) on specific occasions, including:

births or birthdays
weddings or wedding anniversaries
civil partnership ceremonies or anniversaries, or
any other occasion when families, friends or associates usually give presents

You can impose conditions or restrictions on the attorney's powers to make gifts. Any restrictions should be stated clearly in the LPA document.

When deciding on appropriate gifts, the attorney should consider your wishes and feelings to assess what would be in your best interests. The value of any gift must be reasonable and take into account the size of your estate.

If your attorney wishes to give any other gift on your behalf when you do not have capacity to decide whether or not you wish to make the gift yourself, they will need to make an application to the Court seeking its approval to the giving of the gift. This will require submission of detailed evidence and information so that the Court can determine whether the gift is affordable and is in the donor's best interests. Best interests is the basis for any Court decision.

If you previously made donations to any charity regularly or from time to time, attorneys can continue to make charitable donations from your funds. The value of any donation must be reasonable and take into account the size of your estate.

Make and register your LPA

Make sure that you have all the information you need to complete the online LPA application form before you start.

The application form has to be completed in one go so before you press 'submit' please check that all the information on the form is correct.

Sometimes, the hardest part of filling out an application form is getting all the required information together. Print the checklist below to help.

Lasting power of attorney checklist

Once you have all the information to hand, complete the LPA application form by clicking on the 'Make a lasting power of attorney' link below. This will take you to the online form.

Make a lasting power of attorney

When you have completed the online LPA application form, you'll need to print off the application form. Your attorneys and your replacement attorneys (if you have chosen any) will need to sign the LPA application form confirming that they are happy to be appointed your attorney in front of their witnesses and you will need to sign the completed LPA application form in front of your witness.

Pay for your LPA

You can pay for your LPA in a number of ways:

online, before you submit your completed LPA
(The payment request takes a little while to process. Once complete you will be taken back to the LPA screen. If you interrupt the payment process the payment will not go through)
by card, in person when you or your attorney brings your completed LPA application(s) to the Judicial Greffe
by card over the telephone +44 (0) 1534 441360

The current fee for applying to register an LPA is £25. This fee is reduced to £10 if you receive:

income support
long term incapacity allowance
long term care

To be eligible for the lesser amount, you'll need to bring evidence of your benefits with you to the Judicial Greffe when you register your LPA.

Deliver your LPA application to the Judicial Greffe

Submit the fully signed LPA application form, with copies of photographic ID for you and your attorneys, to the Judicial Greffe for registration.

Certified copies of the LPA

The Judicial Greffe occasionally receives requests to provide sealed and certified copies of the LPA. The Judicial Greffe can provide these for a small administration fee.

The registration process

The Judicial Greffe will acknowledge receipt of the LPA and inform you, your attorneys, replacements attorneys and people to notify (as required) that the registration process has commenced.

The application will take up to 4 weeks to register if there are no mistakes in the application.

Once registered, the registered LPA will be sent by post to you, unless you have indicated that you would like us to send it directly to a chosen attorney or to your agent. The Judicial Greffe will inform each of your attorneys, replacement attorneys (if any) and persons to notify (if any) once your LPA has been registered.

Safeguards

Your attorneys cannot use your LPA until you have registered it with the Judicial Greffe.

The Viscount has regulatory and investigatory powers to protect people who don't have capacity. If someone has concerns about an attorney's behaviour they should contact the Viscount who will investigate.

Make and register a lasting power of attorney (LPA)

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