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Planning for the unpalatable

Planning for the unpalatable

Monday 13 December 2021

Planning for the unpalatable

Monday 13 December 2021


While assisted dying has only been approved in principle so far and isn't yet a possibility, many islanders do not realise that there are other ways they can express their choice during their life.

Ian Dyer, now an Associate Director for Law At Work, explains...

The recent States debate on assisted dying generated much discussion and conversation with dichotomous views as to the direction Jersey should take. Whatever the eventual outcome, the proposed law increases individual choice. 

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Pictured: Ian Dyer is an Associate Director for Law At Work.

However, we should not lose sight of the fact that Islanders have current legislation that allows them to plan for a time in the future should they lose capacity to make decisions. 

The Capacity and Self-Determination (Jersey) Law 2016 was implemented in October 2018 and includes the right to make an Advanced Decision to Refuse Treatment and appoint a Lasting Power of Attorney(s) for either Health and Welfare or Property and Financial Affairs. These personal rights reflect the ‘Self-Determination’ element of the law. 

When it comes to medical treatment everybody over the age of 16 in Jersey with capacity, has the right to accept or refuse the offer of treatment.

The importance of this right was put most succinctly by The Honourable Mr Justice Peter Jackson in the Court of Protection in 2015 when he stated: “Every adult capable of making decisions has an absolute right to accept or refuse medical treatment, regardless of the wisdom or consequences of the decision. The decision does not have to be justified to anyone. Without consent any invasion of the body, however well-meaning or therapeutic, will be a criminal assault”.

The ADRT allows people, at a time they have capacity, to state what treatments they may wish to refuse in the future if they were to lose capacity or be unable to communicate. Examples of the type of life-sustaining treatments that may be refused are CPR, clinically assisted nutrition and hydration, anti-biotics for life-threatening infections and treatment for terminal illnesses. 

If you make an advanced decision to refuse life sustaining treatment, you must write down your decision and sign it and have it signed by a witness in your presence. It is for the person making the ADRT to ensure the relevant people are aware of their wishes and get copies of their ADRT, including their G.P., the General Hospital (with a request that a ‘flag’ is put at the front of their medical records stating there is an ADRT) and the people closest to them such as family and friends. 

The ADRT can be withdrawn or amended at any time whilst you have capacity and will not be implemented until such time that you lack capacity. 

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Pictured: A Lasting Power of Attorney allows people over the age of 18 to choose who they would wish to make decisions for them in the future should they lose capacity.

A Lasting Power of Attorney (LPA) allows people over the age of 18 to choose who they would wish to make decisions for them in the future should they lose capacity. There are two types of LPA, one for decisions relating to Health and Wellbeing and one for Property and Financial Affairs decisions. An LPA is a formal document that needs to be registered with the Judicial Greffe.

Whether you use a legal representative to help you complete an LPA is up to you and may be influenced by your personal circumstances. However, the Law and the process of completing the LPA, have been developed in such a way to support significant numbers of people being able to complete the process without the need for legal assistance.

The Health and Wellbeing LPA allows your attorney(s) (the person or people you have nominated, and who have agreed), to make health and welfare decisions for you at such a time in the future should you lose capacity.

The Property and Financial Affairs LPA allows you to say who you wish to manage your finances and to what degree (such as whether they can manage your property affairs). You can also allow Property and Affairs attorneys to manage your finances at a time that you have capacity. 

The cost of registering an LPA with the Judicial Greffe is £25 (£10 if you receive income support, long-term incapacity allowance or long-term care). 

The Capacity and Self-Determination Law allows us to make arrangements for our futures and appoint the people we know and trust to make the decisions for us when we may be most vulnerable. 

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