Health and Social Services Capacity and Self-Determination (Miscellaneous Provisions and Prescribed Fees and Forms) (Jersey) Order 2018: Amendment: Law Drafting Instructions

Information about the publication of Ministerial Decisions

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A decision made on 21 February 2020

Decision Reference: MD-HSS-2020-0006

Decision Summary Title:

Health and Social Services – Capacity and Self-Determination (Miscellaneous Provisions and Prescribed Fees and Forms) (Jersey) Order 2018 – amendment

Date of Decision Summary:

17 February 2020

Decision Summary Author:

Mental Health Law Administrator

Decision Summary:

Public or Exempt?

Public

Type of Report:

Oral or Written?

Oral & written

People Giving

Oral Report:

Mental Health Law Administrator & Assistant Registrar, Probate and Protection

Written Report

Title:

Capacity and Self-Determination (Miscellaneous Provisions and Prescribed Fees and Forms) (Jersey) Order 2018 amendment report

Date of Written Report:

17 February 2020

Written Report Authors:

Mental Health Law Administrator &

Assistant Registrar, Probate and Protection

Written Report :

Public or Exempt?

Public

Subject: Health and Social Services – Capacity and Self-Determination (Miscellaneous Provisions and Prescribed Fees and Forms) (Jersey) Order 2018 – amendment.

Decision(s): The Minister authorised officials to submit law drafting instructions for preparation of the necessary amendments to the 2018 Order (as explained further in the attached Report) to the Legislative Drafting Office, and to undertake all other actions associated with the proposed amendment to the 2018 Order.

Reason(s) for Decision:

The amendments required to the Order, following feedback from users and consultation with members of the Judicial Greffe, Viscount’s Department and Health & Community Services, are:-

(a) To clarify the witnessing requirements of the signature by P and A;

(b) To add Members of the clergy to the prescribed list of individuals able to witness the signature of P;

(d) To amend the LPA application form and instrument (Article 11 of the 2018 Order);

(e) To remove and unprescribe Form 1 detailed in Article 11(2) of the 2018 Order;

(f) To replace the current Form 2 with an improved letter to the donor, copying in all attorneys, acknowledging an application for a LPA is in process;

(g) To replace the current Form 3 with four new Forms – two to P (the donor) enclosing the registered LPA and two to A (all attorneys and replacement attorneys) informing them of a registered LPA; and

(h) That an additional attestation to P (the donor) and A’s (the attorney and replacement attorneys) execution requirements on the LPA application form. This shall be a form of self-declaration as to the attorney being a fit and proper person to act. This will apply in the case of both individual and corporate attorneys.

Resource Implications: None

Action required: The instructions to be sent to the Legislative Drafting Office requesting that the necessary amendments to the 2018 Order is prepared.

Signature:

Position:

Minister for Health and Social Services

Date Signed: { } 2020

Date of Decision: (if different from date signed).

Health and Social Services Capacity and Self -Determination (Miscellaneous Provisions and Prescribed Fees and Forms) (Jersey) Order 2018: Amendment: Law Drafting Instructions

Capacity and Self-Determination (Miscellaneous Provisions and Prescribed Fees and Forms) (Jersey) Order 2018 – amendment

REPORT

The Minister wishes to amend Article 3 of the 2018 Order so that:

(a) ‘Members of the clergy’ shall be added to the prescribed list of witnesses set out in (a) to (i), which applies to the witnessing of a signature by P or A pursuant to paragraph 1(1)(c) of the Schedule to the Capacity and Self-Determination (Jersey) Law 2016; and

(b) it provides that for the purpose of witnessing the signature of ‘A’, the prescribed description of ‘W’ should be any person in the prescribed list of witnesses set out in (a) to (i)[j] or a person who is over the age of 18, who is not P or A to the LPA and who has known A for 2 years or more.

The Minister proposes that provision be added to the 2018 Order for a 10 day period to be prescribed for the purpose of Paragraph 5(1)(b) of the Schedule to the CSDL. The prescribed period is the period of 10 days beginning with the day after the day on which the notice is sent.

The Minister wishes to amend Article 11 of the 2018 Order so that:-

(a) the forms prescribed, for the purposes of paragraph 1(1) of Part 1 (form of instrument conferring a lasting power of attorney) and paragraph 1(2) of Part 2 (application for registration of lasting power of attorney) of the Schedule to the CSDL are replaced.

The revised application form will form part of the instrument. The instrument will be a form of certification confirming that the requirements of Part 2 to the Schedule of the CSDL have been complied with and the Lasting Power of Attorney duly registered and will be appended to a copy of the application;

(b) Article 11(2) is amended as follows:

(i) Form 1 is to be removed and not replaced. The reason being that this form is used by Managers of relevant places (for the purposes of this Part a “relevant place” means a hospital (except any accident or emergency department of a hospital), an approved care home or any establishment regulated under the Regulation of Care (Jersey) Law 2014, or designated by the Minister, for the purpose of providing health or social care) to request an assessment for a Significant Restriction on Liberty.

This form requires constant development to meet the needs of the user and so to have the form unprescribed will allow the flexibility required for this;

(ii) Form 2, Acknowledgement of application for registration of lasting power of attorney (Schedule, Part 2, para 2), shall be replaced with a new Form 1 addressed to P (the donor) and copying in the Attorneys and Replacement Attorneys; and

(iii) Form 3 Notification of registration of a lasting power of attorney shall be replaced by four new letters:

New Form 2: a letter to P (the donor) enclosing the registered LPA for health and welfare;

New Form 3: a letter to P (the donor) enclosing the registered LPA for property and affairs;

New Form 4: a letter to all A (attorneys and replacement attorneys) informing them of a registered LPA for health and welfare; and

New Form 5: a letter to all A (attorneys and replacement attorneys) informing them of a registered LPA for property and affairs.

These four new letters are tailored such that they highlight key and relevant information about LPAs, which is important that those groups of individuals know.

The Minister wishes to introduce an additional attestation as part of P’s (the donor) and A’s (the attorney and replacement attorney) execution requirements on the application form. This attestation is a form of self-declaration as to the attorney being a fit and proper person to act. This will apply in the case of both individual and corporate attorneys.

Mental Health Law Administrator & Assistant Registrar, Probate and Protection

17 February 2020