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18 June 2020
The Capacity and Self Determination (Jersey) Law 2016 came into effect on 1 October 2018, giving individuals the opportunity to put lasting powers of attorney (LPAs)(1) in place which, under the previous customary law, was impossible.
LPAs enable a person (the donor) to appoint someone else (an attorney) to make decisions on their behalf in respect of their:
This gives the donor the opportunity to exert more control over their future if the situation arises where they can no longer express their choices and wishes due to incapacity of some form. An LPA for property and affairs can also be used immediately at the donor's instigation (ie, before the donor loses capacity) if they feel that they need this support. This is especially useful during the COVID-19 pandemic for people who are considered high risk and cannot leave their homes or those who are self-isolating.
In the LPA documents, the donor can provide their attorney with concise instructions and preferences in order to outline their wishes. Instructions must be adhered to by the attorney, whereas preferences are guidelines that the attorney should consider when making decisions.
Example instructions for an LPA for property and affairs include the following phrases:
Example preferences for an LPA for property and affairs include the following phrases:
Example instructions for an LPA for health and welfare include the following phrases:
Example preferences for an LPA for health and welfare include the following phrases:
If doing so without legal advice, individuals must take care when inserting particular instructions and preferences in their LPA to ensure that the wording used does not make the LPA unworkable. Individuals cannot include something which the law does not allow, so they should seek legal advice if they have queries to ensure that their attorney will be able to perform their role in line with the individual's wishes.
LPAs are an excellent tool which enable individuals to take additional estate planning steps. This is especially important in light of the current pandemic, as many people are somewhat removed from everyday life and may wish to appoint someone to assist with the management of their property and financial affairs.
This article was first published in the Jersey Evening Post.
(1) An LPA portal which enables people, in their own space and time, to put together all of the information needed to prepare draft LPAs is available here.
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