The Adviser: Looking after yourself when you can’t look after yourself

Tuesday 08 January 2019

Throughout his career, there are certain issues which Advocate Olaf Blakeley sees cropping up time and time again.

In a two-part series about making a will, Advocate Blakeley explains 'Lasting Powers of Attorney' to make sure that you are looked after when you can't look after yourself.

In his monthly column for Express, Advocate Blakeley discusses a topic which he says he is "continually asked about" when it comes to drafting a will - how to ensure your legal rights are protected even if you no longer possess the capacity to make your own decisions. 

"In this edition, and the first one of the New Year, I am going to talk about two issues which often arise when people decide to write a will. They are matters that my firm is continually asked about, and so I thought it may be helpful to provide some advice and information to readers. The first of the topics is about ‘Lasting Powers of Attorney’ which give someone the power to carry out acts on your behalf, should you not be able to do so. 

First, a quick summary of the law of ‘agency’. Agency is a relationship between a ‘Principal’ and an ‘Agent’. The Principal gives the Agent certain powers, so the Agent can do things on behalf of the Principal. Anything done within that power is treated as an act of the Principal.

Pictured: Advocate Olaf Blakeley explains how to ensure your legal rights are protected when making a will, even when you cannot make decisions for yourself.

This sort of relationship occurs all the time: companies (Principal) and their directors (Agents); a parent business (Principal) and their subsidiaries (Agent). It also happens a lot when people buy property and appoint a lawyer to complete the contract of sale before the Royal Court; the lawyer acts as the agent for the client. 

Powers of Attorney are legal documents which officially give power to a person (or multiple people) to act on another’s behalf. The extent of the power, how it is carried out, and when it is possible to use it, are all matters that can be tailored in the document.

Under the Capacity and Self-Determination (Jersey) Law a number of changes have been made to the way things used to work in Jersey, in this area. Previously, while you could give a person a power to act on your behalf, that power would become defunct and inoperative if, in the future, you lost capacity (i.e. became ill and could no longer make relevant decisions).

In other words, your ‘agent’ could only do things on your behalf if you also were able to do them. This was a pretty hopeless state of affairs. For the most part in personal situations, people don’t need others to act for them when they are capable themselves. It’s when they are not capable that they would need or want someone they trust to make decisions for them. 

Under the new law, you can register a document which gives power to someone else, and that power will endure, even when you lose capacity, unless you revoke or amend the document beforehand. There are two types of situations in which you can give power: the first is allowing someone to make decisions for you about your personal care. This will cover things like your medical treatment and, like all powers of attorney, you can tailor it as you wish.

The second type is to cover financial matters. Under this power, you give authority to another to operate your accounts, buy and sell property, and that type of transaction. Again, the extent of the power and how decisions should be made can be designed as you wish.  

Making a power of attorney is very easy (and so it should be). First you need to decide who you wish to appoint to act of your behalf. It can be more than one person if you wish. My advice: keep it simple and don’t appoint multiple people unless there is a good reason to do so.

Pictured: Advocate Blakeley advises to "keep it simple" when appointing someone to act on your behalf.

Then you need to decide which ‘type’ of situation you wish to cover: your general care? Your finances? Both? Next, think about whether you want to limit the authority you give, or only have it operate in certain circumstances. The specific wording of the authority you give is as flexible as your imagination (within limits). Finally, you will need to arrange for the document to be registered with the Court.

The Judicial Greffe of the Royal Court is becoming more and more efficient in recent years, and much more ‘user friendly’ for general members of the public. Matters are made simple, the officers are very helpful, and the modern world of online transactions is being employed more and more. So, the good news is: you can do most of what I have been writing about online, and more detailed advice is also available too.  

In my experience of speaking to clients when making wills, the majority like the idea of appointing someone they trust to make decisions for them when they become unable to do so themselves.

Most clients tell me it is a “weight off their minds” to know everything is sorted and “in place.” And, remember, this matter is not something that should only be considered by people in their twilight years; accidents happen in which people sustain injuries making it impossible for them to make decisions either temporarily or permanently.  

So, consider that too. Provided you are over 18 and you have mental capacity to grant someone authority, then you can register a Lasting Power of Attorney. 

Next year, I am going to talk about how you can set up instructions about limiting medical care when ill."

This piece appeared in the latest edition of Connect, which you can read in full by clicking here.