Capacity and Self-Determination (Jersey) Law 2016 (CSDL) came into effect on 1 October 2018. It is aimed at allowing people to make their own decisions for as long as possible and to protect 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.
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.
About the lasting power of attorney (LPA)
A lasting power of attorney (LPA) is a legal document that lets you (the 'donor') choose one 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 kinds of decisions but not others. For example, a person might be able to decide what to wear or eat but are not able to made 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.
Email the Judicial Greffe for further information.
Types of lasting power of attorney
There are 2 types of LPA, covering 2 types of decisions:
- property and financial affairs dealing with money, finances and property. For example:
- managing a bank account
- paying bills
- ensuring that you receive pensions and benefits that are due to you
- (if you allow it) to make decisions in respect of your home
- health and welfare dealing with your personal health and care. For example:
- your daily routine and medical care
- where you should live
- (if you allow it) life-sustaining treatment
You can choose to either make one type of LPA, or choose to make both. If you want to make an LPA for both you'll need to complete 2 separate applications.
Helping another person, friend or relative to make an LPA
If you're helping another person, 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
email the Judicial Greffe who will assist you apply to the Royal Court to appoint someone (a delegate) to assist them.
Who is needed to make an LPA
You need to have the following to make an LPA:
- donor's witness
- attorney's witness
An LPA is for just one person. You can make an LPA if you're:
- 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 people you choose to act for you are called attorneys. An attorney should agree to the appointment 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 or husband
- civil partner
- other family members
- people you trust or a professional, such as a solicitor or an accountant. Professional attorneys usually charge fees
If you choose your spouse or civil partner to be your attorney and your relationship ends, they will 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.
When selecting attorneys, you should consider:
- how many you want to appoint and if they'll be able to work together (there is no upward limit, however too many is not advised)
- 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 must be a:
- member of the Government of Jersey Assembly, for example a Parish Constable, Deputy or a Minister
- Notary Public
- Jurat of the Royal Court of Jersey
- advocate or solicitor of the Royal Court of Jersey
- 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
- registered medical practitioner, for example your doctor
- registered health care professional, for example a social worker, psychologist, psychiatrist, community nurse
- minister of religion
- 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 signatures 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
- be a member of one of the professions who can act as a witness for the donor
Additional people you can choose
You may wish to include replacement attorney's or people to notify in your LPA.
Replacement attorneys are people you choose to step in if one of your original attorneys can no longer make decisions on your behalf.
A replacement attorney will step in if one of your attorneys:
- loses capacity
- decides they no longer want to act on your behalf
- was your wife, husband or civil 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)
They can only act if the original attorney they're replacing is permanently unable to make decisions for one 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 one 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 one original attorney and multiple replacement attorneys then you need to decide how you would like your replacement attorneys to make decisions.
Replacement attorneys must inform the Judicial Greffe as soon as they step in.
Having 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 one 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 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 can make some decisions on your behalf, however, they must always follow the principles of the Law and act in your best interests.
The Capacity and Self-Determination (Jersey) Law 2016 Code of Practice goes into this much more fully. It sets out 5 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 attorneys can 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 then lose capacity, they can carry on using the LPA.
As long as you have capacity, you are in control your finances and affairs.
Alternatively, you can choose that your financial LPA will take effect and your attorneys will 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 your attorneys make decisions
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.
If you choose to have more than one 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)
- Jointly (attorneys must agree every decision together)
Jointly for some decisions and Jointly and severally for other decisions
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. One 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 one 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.
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.
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.
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."
When an attorney 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
If an attorney dies or has to stop acting for one of the reasons above, it can cause serious problems. For example, if you appointed only one 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.
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 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.
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'.
Note: 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 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 don't want 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.
Note: 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 belongs 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
- 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.
Should your attorney wish 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, he 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 lasting power of attorney
You can make an LPA by clicking on the "Make a lasting power of attorney" link below. This will take you to the online form.
Paying 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; or
- by card over the call +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.
Before you begin
You need to make quite a few decisions when you make your LPA. It's important to know how your LPA will work and to talk to the people you wish to involve. To assist you, find here a questionnaire of questions you might like to consider and information you will need to have to hand before starting your application.
Lasting power of attorney questionnaire
Once the online form is completed and submitted (once you've pressed the green "Submit" button) a summary of the LPA is available to print.
You'll need to sign the printed form in front of your witness and your attorney(s) will need to sign it in front of their witness before the application is forwarded to the Judicial Greffe for registration.
Make a lasting power of attorney
Things to remember when you or your attorney deliver your completed LPA to the Judicial Greffe for registration:
- the completed LPA signed by you and your witness, your attorneys and their witness and your replacement attorneys (if you have chosen to appoint any) and their witness
- photographic ID for you, your attorneys and replacement attorneys (if you have chosen to appoint any)
- a bank card to make payment, if you haven't already paid for the LPA online
The Judicial Greffe occasionally receive requests to provide sealed and certified copies of the LPA so that they can be given to the original attorneys for their ease of reference. 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.
Your attorneys cannot use your LPA until you have registered it with the Judicial Greffe. The Court Services Department works 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.