A guide to becoming a delegate
If you are applying to take on the role of delegate you need to read our guide before making an application.
A guide on becoming a delegate
The Capacity and Self-Determination (Jersey) Law 2016 (CSDL) which came into force on Monday 1 October 2018 and replaces the Curatorship system.
The role of a delegate
Most of us take for granted our ability to think clearly and make decisions. What happens if one day you lose that ability? There are any number of reasons why a person’s capacity may become impaired. These could include health problems, stroke, illness or injury.
If someone has lost the ability to make decisions for themselves (in the short or long term), the court may appoint a delegate to act and make decisions on the individual’s behalf.
Being a delegate is an important responsibility which comes with legal obligations. Delegates must always act in the best interests of the individual. They must follow the principles set out in the CSDL.
The appointment of a delegate is likely to be suitable when decisions need to be taken on an ongoing basis. The court will set out the basis that the delegate can act and for how long.
If you’re an existing curator
If you’re already a curator, you will now automatically transfer to become a delegate. Refer to transitional guidance for curators which will explain the difference between the Mental Health (Jersey) Law 1969 and the CSDL.
Transitional guidance for curators
Definition of capacity
'Capacity' means the ability to make a decision. 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 can make some kinds of decisions but don't have the capacity to make others.
You will find the legal definition of a person’s capacity in Part 1 of the
Capacity and Self-Determination law on the Jersey Law website.
The purpose of the CSDL is to help people who don't have capacity to make decisions themselves. The aim of the CSDL is to empower people to make decisions for themselves for as long as possible. On losing capacity, it aims to protect them when they can no longer make decisions for themselves.
Who can be a delegate
Anyone with a relationship with the person can apply to the Court to be appointed as a delegate. It's usually close relatives or friends of the person who needs help making decisions. The delegate must be over 18 years of age. The proposed delegate must satisfy the Court that they are a suitable person. They must show that they have the ability and skills to carry out the role. Sometimes paid professionals such as lawyers or accountants act as delegates.
Types of delegate
There are three types of delegates:
- delegate for property and affairs will have powers in relation to the finances and property belonging to the person
- delegate for health and welfare will have powers in relation to making health or welfare decisions for the person
- delegate for both of the above
The types of decisions that the person needs someone to take will determine the type of delegate they need.
See Part 4 chapter 27 and 28 of the
Capacity and Self-Determination law on the Jersey Law website for clarification of what the different types of delegate mean.
If you are acting as a delegate you may charge fees depending on whether you are either a:
- lay delegate, acting in your personal capacity (for example spouse, family member or friend of the person lacking capacity), or
- professional delegate, acting in a professional capacity (for example a lawyer or accountant)
The guides below give further details about the basis on which you may charge fees and how to calculate them.
Guide to charging delegate fees
If you act as lay delegates you are likely to have a close personal relationship with the person, and you may not want to charge a fee for acting as a delegate. Delegates are not obliged to charge a fee if they do not wish to do so. However, the Order allows a fee to be charged based on the person’s income.
Guide for lay delegate fees
Subject to the direction of the Court, a professional delegate can charge their professional fee when administering the person’s property and affairs. Any charged fee must be:
in the best interest of the person
in proportion to total value of the person’s assets and the amount of work done
Guide for professional delegates
Appointment of a delegate and core principles that delegates must follow
Being a delegate is an important responsibility that comes with legal obligations. Delegates must always act in the best interests of the individual. They must follow the principles set out in the CSDL:
- everyone aged 16 and over is assumed to have capacity. Delegates must assume that the person can make their own decisions unless they establish that the person is unable to do so
- a person must be fully supported to make decisions. Delegates must help the person to make as many of their own decisions as they can. They must take all practical steps to help the person make a decision. They can only treat the person as unable to make a decision if they have taken those steps without success
- people have the right to make unwise decisions. Delegates must not treat the person as unable to make a decision because they consider them to be making an unwise decision. If the person makes what seems to be an unwise or odd decision, that doesn’t mean they lack capacity to make it (many people make unwise decisions from time to time)
- anything done on behalf of a person must be in their best interests. Delegates must act and make decisions in the person’s best interests when the person is unable to make a decision
- anything done on behalf of a person who lacks capacity should restrict their basic rights and freedom of action as little as possible. Before a delegate can make a decision or act for the person, they must consider whether they can achieve the same result without restricting the person’s rights and freedoms
The appointment of a delegate is likely to be suitable when decisions need to be taken on behalf of another person on an ongoing basis. The Court will set out the basis on which the delegate can act and for how long.
How capacity is assessed
‘Capacity’ is tested for under the new law. If the person is unable to make a decision at the time it needs to be made because – either they have an impairment of the mind or brain or some other disturbance in the way their mind or brain works that is affecting the decision-making - they may lack capacity.
A person with capacity has at least a general understanding of:
- the decision they need to make
- why they need to make it
- any information relevant to the decision
- the likely consequences of the decision
There is more information about how to help the person to make a decision for themselves in the guide on how to be a delegate.
Advanced decision to refuse treatment (ADRT)
The new law will allow a person to make a decision to refuse treatment if they should lose capacity to give (or refuse) consent in the future. Find out more about
Where an ADRT concerns treatment that is necessary to sustain life, strict formalities must be complied with in order for the advance decision to be applicable. The effect of a valid ADRT should be the same as a decision that is made by a person with capacity to refuse treatment, so medical professionals will be required to act in accordance with it. See Part 3 of the
Capacity and Self-Determination law on the Jersey Law website.
Best interests of the person
Delegates must always act in the person’s best interests. That means that they must make decisions only for the person’s benefit and not for anyone else.
The application process: getting started
Contact a member of the Capacity Section of the Judicial Greffe on +44 (0) 1534 441300. They will need to know your reasons for wanting to become a delegate for your family member or friend.
Checklist of documents you’ll need
You’ll need to complete or get the following documents and return them to the Judicial Greffe.
Guide to completing a delegate application form
|Application form for property and financial affairs matters (DPA01)|||
|Application form for health and welfare matters (DHW01)|||
|Practitioner's Assessment of Capacity form (DP05)||This form will be completed by a doctor or other professional and forwarded to the Judicial Greffe|
|Two character references for the proposed delegate||The delegate will need two character references from responsible persons. They can't be from a relative or partner of the person who needs a delegate|
|Copy of the proposed delegate's passport|||
|Copy of a utility bill of the proposed delegate||The bill must show a date within the last three months|
|Disclosure and Barring Service (DBS) database check certificate||Each proposed delegate must send a certificate showing that they've been DBS checked. The Capacity Section of the Judicial Greffe can tell you how to go about getting this certificate.|
|Letters from any relevant people confirming that they are happy with the proposed delegate||Relevant people means the spouse, civil partner and children of the person to whom the application relates|