Becoming a Delegate

The appointment of a Delegate

The CSDL 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 themselves, 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. The Court will set out the basis that the Delegate can act and for how long.

Being a Delegate is an important responsibility which comes with legal obligations. Delegates must always act in the best interests of the person and they must follow the principles set out in the CSDL.

Types of Delegate

There are 2 types of Delegates:

1. a Delegate for property and affairs will be able to make decisions about the person's property and financial affairs
   

2. a Delegate for health and welfare will be able to make decisions about the person's health and welfare
   

Delegates for health and welfare decisions will only be required where:

• important and necessary actions cannot be carried out without the Court's authority
  
• there is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions
  
• an individual or individuals seek some scope of decision-making authority for a person's ongoing care and treatment

The types of decisions that the person needs someone to take will determine the type of Delegate they need. See Part 4 chapters 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 or Chapter 10 of theCapacity and Self-Determination (Jersey) Law 2016 Code of Practice.

Who can be a Delegate

Anyone with a relationship with the person, who is over the age of 18 years, 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 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. A person can have more than one Delegate, if appropriate. Sometimes paid professionals such as lawyers or accountants act as Delegates.

Someone who is currently bankrupt in Jersey, or who is the subject of proceedings of a similar nature under the laws of any other jurisdiction, cannot be appointed a Delegate for property and affairs.  They can be appointed Delegate for health and welfare. If a Delegate for property and affairs is appointed and later becomes bankrupt he must inform the Judicial Greffe immediately and resign as Delegate.

The role of a Delegate

The CSDL imposes that Delegates must:

• follow the CSDL's core principles (see chapter 1 of the Capacity and Self-Determination (Jersey) Law 2016 Code of Practice).
• make decisions or act in the best interests of the person who lacks capacity without undue delay.  This means that they must make decisions only for the person's benefit and not for anyone else
• have regard to the guidance in the Capacity and Self-Determination (Jersey) Law 2016 Code of Practice
• only make decisions the Court has given them authority to make
• comply with the directions of the Court

Delegates must carry out their duties carefully and responsibly. They have a duty to: 

• act with due care and skill
• not take advantage of their situation
• indemnify the person against liability to third parties caused by the Delegate's negligence
• not to delegate their duties.  A Delegate may seek professional or expert advice (for example, investment advice from a financial adviser or a second medical opinion from a doctor). However, they cannot give their decision-making responsibilities to someone else. The Court can authorise the delegation of specific tasks (for example, appointing a discretionary investment manager for the conduct of investment business)
• respect the person's confidentiality.  Delegates have a duty to keep the person's affairs confidential, unless:
• before they lost capacity to do so, the person agreed that information could be revealed where necessary
• there is some other good reason to release information (for example, it is in the public interest or in the best interests of the person who lacks capacity, or where there is a risk of harm to the person concerned or to other people)
• Delegates for property and affairs should usually keep the person's money and property separate from their own or anyone else's. This is to avoid any possibility of mistakes or confusion in handling the person's affairs. Sometimes there may be good reason not to do so (for example, where a couple have had a joint account for many years)
• inform the Judicial Greffe of any changes of contact details or circumstances (for the Delegate or the person they are acting for). This will make sure the Judicial Greffe has up-to-date records

Excluded decisions

There are certain decisions which can never be made on behalf of a person who lacks capacity. This is because they are either so personal to the individual concerned, or governed by other legislation. Article 7 of the CSDL and Chapter 4 of the Code of Practice sets out the specific decisions which can never be made under the Law, whether by family members, carers, professionals, attorneys or the Court.

Delegate fees

If you are acting as a Delegate for property and affairs 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 Capacity and Self-Determination (Miscellaneous Provisions and Prescribed Fees and Forms) (Jersey) Order 2018 (the Order) describes the way in which Delegates for property and affairs may charge fees for acting as a Delegate.  

A Delegate appointed by the Court after the CSDL came into force will only be able to charge fees if the Court has directed that fees may be charged. New Delegates should consider whether they wish to apply for the Court's authority to charge fees when preparing their application to become a Delegate.

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

Lay Delegate

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, if the Court has directed that the delegate may be remunerated, based on the person’s income.

Guide for lay delegate fees

Professional Delegate

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
  
• reasonable
• in proportion to total value of the person’s assets and the amount of work done

Guide for professional delegates

The application process: getting started

Delegate for property and affairs on an ongoing basis

To be appointed a Delegate for property and affairs to make decisions regarding a person’s property and financial affairs on an ongoing basis, your application should include the following:

​Document	​Notes
​Application form for property and financial affairs matters (DPA01)	​If you are nominating yourself as Delegate for the person, you will complete Part A as the Applicant and then Part B as the proposed Delegate.
​Practitioner's Assessment of Capacity form (DP05)	​A person must be assumed to have capacity unless it is established that they lack capacity.  The Court will need to be satisfied that the person for whom a Delegate is to be appointed lacks capacity to consider the specific decision(s).  The practitioner's assessment of capacity form needs to be completed by a registered practitioner e.g. a general practitioner (GP); a medical practitioner, social worker, psychologist or an approved mental health practitioner. The practitioner will already have access to this form; however, if you are requesting a practitioner to carry out a capacity assessment on the person you believe lacks capacity they need to be clear on what decision they are assessing the individual.  For example, is the assessment to be on the broad decision as to whether or not the person can manage their financial property and affairs for themselves?
​Two character references for the proposed delegate	​These can be letters from friends or colleagues who have known you personally for some time and can attest to your good character and appropriateness to your being appointed Delegate for the person you are making the application for
​Letters of consent	​If the person on whose behalf you are submitting the application has immediate family members, such as a spouse or children (and if none of those brothers and sisters) then we require letters from each of those individuals confirming that they are aware of the application you are making to be appointed Delegate and that they consent to your appointment
​Due diligence	​We require photographic ID, for example passport/driving licence and an original utility bill or bank statement showing your residential address (the document needs to be dated within the last three months).
​A clear basic Disclosure and Barring Service (DBS) database check certificate	​This is a form of police check that will detail any unspent convictions or conditional cautions you may have. You can apply for a basic DBS check online through gov.uk or through one of the many companies that assist in making such applications. Alternatively, the Citizens Advice Bureau locally can assist you with your application.
The application fee	​This is £160.00 broken down as follows:  £120 Court receipt and £40.00 of Jurat Stamps. Both the Court receipt and Jurat stamps can be purchased from the Treasury Cashiers at Customer and Local Services Department, La Motte Street, St Helier.

Following your appointment as Delegate you can claim expenses that you have properly incurred in making this application, ie. the application and DBS fee, from the person’s funds.

In advance of bringing the application to Court, members of the capacity team at the Judicial Greffe will ask you to come in to see them so that they might inform you of the principles of the Capacity and Self-Determination (Jersey) Law 2016 (the Law that relates to Delegates), its Code of Practice and of the roles and responsibilities of Delegates so that you are fully equipped with the information you need to assume the role.

Delegate for property and affairs for single or limited decisions

To be appointed as Delegate for property and affairs to make a single or limited decisions for a short period regarding a person’s property and financial affairs, your application should include the following:

​Document	​Notes
​Application form for property and financial affairs matters (DPA02)	​A completed application form (DP02), where a single or limited property and affairs decision is required to be ordered or authorised by the Court. Please speak to a member of the capacity team at the Judicial Greffe who will be able to guide you in preparing your application and suggest supporting documents that may be sought by the Court.
​Practitioner's Assessment of Capacity form (DP05)	​A person must be assumed to have capacity unless it is established that they lack capacity. The Court will need to be satisfied that the person for whom a Delegate is to be appointed lacks capacity to consider the specific decision(s). The practitioner's assessment of capacity form needs to be completed by a registered practitioner e.g. a general practitioner (GP); a medical practitioner, social worker, psychologist or an approved mental health practitioner. The practitioner will already have access to this form; however, if you are requesting a practitioner to carry out a capacity assessment on the person you believe lacks capacity they need to be clear on what decision they are assessing the individual. For example, can the person make a decision on whether it is in their best interests to sell their residential property to raise funds for their ongoing care needs? Or does the person understand and is able to enter into a lease for themselves?
​Letters of consent	​If the person on whose behalf you are submitting the application has immediate family members, such as a spouse or children (and if none of those brothers and sisters) then we require letters from each of those individuals confirming that they are aware of, and consent to, the application.
The application fee	​This is £160.00 broken down as follows:  £120 Court receipt and £40.00 of Jurat Stamps. Both the Court receipt and Jurat stamps can be purchased from the Treasury Cashiers at Customer and Local Services Department, La Motte Street, St Helier.

Contact the capacity team at the Judicial Greffe to make them aware of your application so that they might inform you what additional documents the Court might expect to receive to support your application.

Health and welfare applications

Contact a member of the capacity team at the Judicial Greffe who will help you with your application.

Following your appointment as a Delegate

Collect your Act of Appointment

The Act of Court confirming your appointment as Delegate will be available to collect from the Judicial Greffe Reception two working days after your Court appearance. This is the document that you will need to show to prove that you are a Delegate for the person.

Please make sure you are familiar with the types of decisions it says you can make for the person. You can only make decisions for the person in areas that the Court has authorised. If you want to make other decisions, you need to apply to the Court to extend your powers.

Let people know that you are a Delegate

You need to let certain organisations and individuals know that you are a Delegate.  Some examples are:

• banks
• Social Security
• the payer of any private pensions
• the lawyer who holds the person's will
• care or nursing home
• hospital

Financial institutions such as banks will want to see the Act of Court. They will not allow you to make any transactions on behalf of the person until they have seen it. (If you need additional copies of the Act of Court these are available from the Judicial Greffe for a small fee). These organisations may also need proof of your and the person's name and address.

Get to know the person you are making decisions for

If you didn't already know the person you are acting for you should start to get to know them now. The main rule is that any decisions you make must always be in the person's best interests.

Your decisions must be in keeping with the size of the person's estate. There are other things to think about too. Some people sometimes have capacity, and sometimes don't have capacity ("fluctuating capacity"). If this is the case, make a note of the sorts of decisions they make when they do have capacity.

If the person once had capacity but now doesn't, consider what kinds of financial decisions they made when they did.

Ask other people, such as close friends and relatives, about the person's likes and dislikes. Ask about their wishes, beliefs and past decision-making if they had capacity in the past. Use all these sources of information to guide your decision-making.

Start recording decisions and treatments

Keeping records is one of the Delegate's duties. Delegates will include details of decisions in their annual report.

Reporting responsibilities of a Delegate

The CSDL requires Delegates to fulfil certain administrative responsibilities. These are set out below.

An Inventory (Delegates for property and affairs only)

Delegates for property and affairs must submit an inventory of the person's property.  This is a list of the assets belonging to the person that the Delegate now has responsibility for.  It should be completed as at the date that the Delegate was appointed to the role and must be delivered to the Judicial Greffe within 3 months of the appointment date.

Inventory of property and assets for delegates

Annual Plan and Report of Delegates actions and decision-making

Delegates must complete an annual plan and report, as at the anniversary date of the Delegate's appointment, each year. The form must be delivered to the Judicial Greffe within 3 months of the anniversary date of the Delegate's appointment. The form is split into distinct parts. 

Attach an income and expenditure report with or without a balance sheet, together with any other documents that will be helpful for the Court to know, to the Annual Report and Plan. These documents form part of the Annual Report and Plan.

Annual report form for delegates

Supervision of Delegates

Delegates are accountable to the Court. The Court can cancel a Delegate’s appointment at any time if it decides the appointment is no longer in the best interests of the person who lacks capacity.

The Viscount is responsible for supervising and supporting Delegates. However, the Viscount must also protect people lacking capacity from possible abuse or exploitation. Anybody who suspects that a Delegate is abusing their position should contact the Viscount immediately.

The Viscount will consider carefully any concerns or complaints against Delegates.

Data protection

Information on how the Judicial Greffe uses your data can be found in the Judicial Greffe privacy policy.​