Curatorships & the Capacity & Self Determination Law Curatorships & the Capacity & Self Determination Law Zoë Blomfield – Managing Partner & Ashley Bidmead – Senior Legal Assistant
Curatorships & the Capacity & Self Determination Law What is a curator? A Curator is appointed to manage and administer the affairs of a person (‘the Interdict’) who has been found to be mentally incapable of doing so himself. The Curatorship system is governed and run by the Mental Health (Jersey) Law 1969 (the “Law”), as amended, and the Mental Health (Jersey) Rules 1971, as amended, (the “Rules”). 2
Curatorships & the Capacity & Self Determination Law The role of the curator Pursuant to Article 43 (15) of the Law, a Curator may do anything in relation to the Interdict’s property and affairs as appear to him necessary and expedient to do so: a) For the maintenance or other benefit of the Interdict; b) For the maintenance of other benefit of the Interdict’s family; c) For making provision for other persons for whom, or for other purposes for d) which, the Interdict might be expected to provide; e) Otherwise for the management and administration of the Interdict’s property and affairs. Pursuant to Article 43 (17) of the Law, a Curator must seek the consent of the Court to: a) Sell, acquire, share or deal in, charge or exchange any property on behalf of the Interdict; b) Conducts any legal proceedings on behalf of the Interdict; c) Exercises any power vested in the Interdict 3
Curatorships & the Capacity & Self Determination Law Modest expenditure The Court will regard such expenditure as modest if it is less than £2,000 or 10% of the annual income of the Interdict, subject to a maximum expenditure of £10,000, whichever of those figures is the greater. In each case the figure concerned must be taken as the aggregate expenditure on behalf of the Interdict during the course of a year. For example, where an Interdict has an annual income of £100,000, the Curator may spend an aggregate of £10,000. 4
Curatorships & the Capacity & Self Determination Law Duties of a curator The duties of a Curator are statutory in nature and are set out in Article 43 and in the oath taken by a Curator under the Law on his appointment. In particular the Curator has a duty to: a) Within 90 days of taking the oath, deliver to the Judicial Greffe (the administration office of the Royal Court), an inventory of all of the property, both immovable and movable, owned by the Interdict; b) Within 30 days after the expiration of 12 months following the taking of the oath, provide annual accounts for that period relating to the affairs and property of the Interdict; c) Within 30 days of ceasing to be a Curator, provide a copy of all accounts for the Curator’s period of office. 5
Curatorships & the Capacity & Self Determination Law Duties of a curator A Curator has a general duty to conserve and so far as possible increase the property as if it were the curator's own property. Under Article 43(15) a curator has a duty to act in relation to the property and affairs of the interdict where it is "necessary and expedient to do so" for the maintenance or other benefit of the interdict and his family, for making provision for other persons for whom the interdict might be expected to provide, otherwise for the management and administration of the interdict's property and affairs. 6
Curatorships & the Capacity & Self Determination Law Curator’s charges The Mental Health (Jersey) Law 2005 Article 43(22) provides that a curator shall be entitled to receive remuneration, payable out of the estate of the Interdict, in accordance with such scales as may be fixed by rules of court. Rule 13 of the Mental Health Rules 1971 provides as follows: 1) Unless otherwise directed by the court in any special case, a curator shall be entitled to receive by way of remuneration a percentage of the Interdict’s gross annual income, calculated in accordance with the following scale: Where the gross annual income does not exceed £10,000 … 5% Where the gross annual income exceeds £10,000: • On the first £10,000 thereof … 5% • On the balance in excess of £10,000... 2.5% 7
Curatorships & the Capacity & Self Determination Law Curator’s charges 2) Notwithstanding that a curator receives remuneration in accordance with paragraph 1) a) a curator being an advocate, solicitor or other professional person shall be entitled to charge and be paid out of the Interdict’s estate usual professional fees for doing, or properly incurred by the curator in employing another professional person to do, in connection with the administration of the Interdict’s estate, any work normally requiring professional assistance; b) a curator not being an advocate, solicitor or other professional person shall be entitled to repayment out of the Interdict’s estate of any expenses properly incurred by the curator in employing an advocate, solicitor or other professional person to do, in connection with the administration of the interdict’s estate, any work normally requiring professional assistance. 8
Curatorships & the Capacity & Self Determination Law The capacity & self-determination law (part 1) General principles • General principles = clarity on how to approach decision making • Test for assessing capacity and best interests = better and more consistent decision making • Clarifying when restraint can be used = human rights compliance and safeguards for patients and staff Principles (Art 3) • A person (16+) must be assumed to have capacity unless it is proved otherwise • Wherever possible should help and support person to make his own decision • A person is not to be treated as unable to make a decision merely because they make an unwise decision • Anything done for or on behalf of a person who lacks capacity must be done in their best interests and in the least restrictive manner 9
Curatorships & the Capacity & Self Determination Law The capacity & self-determination law (part 1) Two stage test to assess whether someone lacks capacity to make a decision (Arts 4 and 5): 1) Does the person have an impairment of, or disturbance in, the functioning of the mind or brain? (very broad, includes intoxication) 2) Is the person unable to do any one of the following things in relation to the decision: • understand the information relevant to the decision? • retain the information long enough to make the decision? • use or weigh the information to come to a decision? • communicate that decision (even with any practical assistance)? If the answer is yes at both stages then the person lacks capacity to make the decision. 10
Curatorships & the Capacity & Self Determination Law The capacity & self-determination law (part 2) Lasting powers of attorney Allowing people to choose who will make decisions for them = planning for the future and helping people ensure their best interests are protected • Donor must be 18 years or older and have capacity to make LPA • Confers powers on one or more people to make decisions on donor’s behalf • Health and welfare (e.g. daily routine, medical care) • Property and financial affairs (e.g. paying bills, collecting benefits, selling assets) 11
Curatorships & the Capacity & Self Determination Law The capacity & self-determination law (part 3) Advance decisions to refuse treatment Ability to refuse consent to treatment in advance = better protection for patients and guidance for staff, respecting people’s wishes and dignity. • Any person aged 16 or older can make an advance decision to refuse specified treatment. • Medical professionals required to act in accordance with advance decision. • May be withdrawn at any time • Formalities if covers life sustaining treatment • No liability when acting on valid ADRT • Court has power to determine disputes 12
Curatorships & the Capacity & Self Determination Law The capacity & self-determination law (part 4) Appointment of delegates / powers of the court • Article 24 sets out a wide discretion for the Royal Court to make decisions or declarations and appoint delegates • Replaces curatorship and codifies some of the powers exercised under the Royal Courts inherent jurisdiction in this area • Royal Court can appoint a delegate to make health and welfare or finance and affairs decisions. • Article 36 - Regulation making power with regard to the supervision of persons acting as delegates and investigation of complaints 13
Curatorships & the Capacity & Self Determination Law Thank you Questions 14
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