About the Capacity and Self-Determination (Jersey) Law 2016
The Capacity and Self-Determination (Jersey) Law 2016 (the Law) came into effect on Monday 1 October 2018.
The purpose of the Law is to safeguard the dignity and wellbeing of people who are not able to make decisions for themselves, as well as providing for those who are still able to do so, allowing them to plan for the future.
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 Law does this by allowing for the appointment of delegates or attorneys to make decisions.
Purpose of this guidance note
The purpose of this guidance note is to explain the Viscount’s powers to investigate complaints about the conduct of delegates and attorneys. It also explains what to do if you wish to make a complaint, or have a concern, about the conduct of a person who is acting as a delegate or attorney for another person.
The Law allows the Court to appoint a person, known as a “Delegate”, to make decisions on behalf of a person, where that person does not have the capacity to make the decisions for themself, because they have an impairment or a disturbance in the functioning of their mind or brain.
The delegate may be appointed to make a limited range of decisions over a short period. They may also be appointed more generally to make decisions affecting the person for an indefinite period, if that is appropriate.
A delegate’s appointment may enable them to make decisions about:
- the person’s property and financial affairs; and/or
- matters relating to the person’s health and welfare
Delegates must always act in the best interests of the person for whom they have been appointed to make decisions. They must also observe any requirements and conditions specified by the Court when it appoints them.
Lasting powers of attorney
A lasting power of attorney (LPA) is a legal document that allows a person to choose trusted people (known as “Attorneys”) to make decisions on their behalf if they lose capacity or would like help in managing their affairs as they get older.
A person with capacity may make a LPA giving an attorney power to make decisions either relating to their property and financial affairs or about their health and welfare (or both, if they wish). A LPA will only come into effect when the person making it loses capacity, unless the person authorises their attorney to make decisions while they still have capacity.
An attorney must always act in the best interests of the person who has appointed them to make decisions. They must also comply with any specific instructions in the LPA under which they have been appointed.
The powers of the Viscount
The Capacity and Self-Determination (Supervision of Delegates Etc.) (Jersey) Regulations 2018 give the Viscount statutory powers to:
- supervise the conduct of delegates and attorneys
- monitor delegates’ compliance with the Law and the Court order appointing them
- monitor attorneys’ compliance with the LPA under which they were appointed
- investigate complaints against delegates and attorneys
Where necessary, the Viscount can bring complaints to the attention of the Court, so that appropriate action may be taken by the Court.
What the Viscount will do if a complaint is made about a delegate or attorney
Our principal aim is to make sure the property and financial affairs and/or health and welfare of a person who does not have capacity are suitably safeguarded and are not at risk from abuse or misuse by a delegate or an attorney appointed to take decisions on their behalf.
If a complaint or concern is raised with the Viscount, we will review the information provided to establish whether we have a remit to start an investigation. If we decide that we do, we will investigate the circumstances leading to the complaint. Depending on the nature of the complaint, the Viscount may instruct specialists to assist in the investigation.
Initially, we will ask the person making the complaint or raising the concern to explain their concerns and to provide us with all the information they have to support their views. If necessary, we will request information from other sources to decide whether or not there is reason to investigate further.
An investigation may involve gathering information from relevant parties by interviewing people and reviewing documentation such as bank statements, financial records, receipts etc. If appropriate, we may also speak to or ask for information from carers, medical professionals and family members.
Where we can, we will work with the delegate or attorney to resolve the situation and ensure that any concerns are addressed.
If the Viscount considers it appropriate, the Viscount will refer the complaint to the Court and ask the Court to decide whether any action should be taken as a result of the delegate’s or attorney’s conduct.
The Viscount is not obliged to investigate or consider a complaint if the subject matter is trivial or if the complaint is frivolous, vexatious or not made in good faith.
What to do if you want to make a complaint or have concerns about the conduct of a delegate or attorney
If you have concerns or a complaint about the way in which a person’s property and financial affairs or health and welfare are being managed by a delegate or an attorney, you can tell us about your concerns. You will need to explain why you want to make a complaint or are concerned and, if possible, provide evidence to support your concerns.
Examples of concerns in relation to the person’s property and financial affairs may be:
- theft or fraud
- misuse of property, possessions or benefits
- putting too much pressure on the individual
- involving a third party who has no authority to make decisions
- over-charging of fees
- making a decision that you believe the individual would not make if they had capacity (for example, if the decision goes against their religious or ethical beliefs)
Examples of concerns relating to the health and welfare of a person may be:
- restricting the person’s contact with another person
- restricting their freedom and liberty
- physically or mentally abusing the person
- neglecting their needs
- making a decision that you know the individual would not make if they had capacity (for example, if the decision goes against their religious or ethical beliefs)
- failing or refusing to make a decision about the person’s care and treatment
If you want to make a complaint, you need to complete a concern or complaint form. You can include any additional information which supports or explains your complain or concern.
Submit a concern or complaint form
You can also contact us with full details of your complaint or concerns by:
- emailing us with full details of your complaint and/or concerns
- write to the Regulatory Officer for Delegates at the Viscount's Department