The Committee for Health & Social Care (HSC) invited comments on the draft of The Capacity (Lasting Powers of Attorney) (Bailiwick of Guernsey) Ordinance, 2021. The closing date for the consultation to HSC was 24th September 2021. The GDA has made representation which can be found by clicking below:
A lasting power of attorney is a legal document that lets you choose one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.
This gives you more control over what happens to you if you have an accident or an illness and can’t make your own decisions because of an impairment that is affecting your thinking (you ‘lack capacity’).
‘Capacity’ means the ability to make a decision at the time it needs to be made. A person with capacity has some understanding of the decision they need to make. They also need to know why they need to make it and the likely consequences. Sometimes people have capacity to make some kinds of decisions but not others. For example, a person might be able to decide what to wear or eat but are not able to made decisions regarding their care.
A lasting power of attorney helps you control decisions that affect you, even when you cannot make them yourself. It allows you to plan and choose:
what decisions you want to be made on your behalf
who will make those decisions
how you want them to make those decisions
What is in the draft Ordinance?
The draft Ordinance describes the means for the creation of a lasting power of attorney in respect of:
health and welfare matters
It sets out the proposed process of registration of a lasting power of attorney through Her Majesty’s Greffier.
The ordinance also sets out who can make a lasting power of attorney, the Capacity Law puts restrictions on who can be an attorney in different circumstances.
The Ordinance also defines and describes the requirements in a number of other key areas such as:
(a) the creation, registration, activation, amendment, suspension, revocation and review of lasting powers of attorney,
(b) the content of relevant documents, and
(c) the creation and punishment of offences for contravention of the legislation
What safeguards are proposed in the draft Ordinance?
The safeguards which have been set out in the draft Ordinance have been included on the basis of comments made by consultees during the consultation on the Law itself. These safeguards are intended to protect those wishing to make a lasting power of attorney in the Bailiwick context (as well as those acting under LPAs) and ensure that the relevant checks are carried out in the most appropriate way at the most appropriate time using the required expertise.
Attorneys must abide by the principles of the Law and act in the best interest of the person making the lasting power of attorney.
What are the principles in the Capacity Law?
The principles are:
(a) a person must be assumed to have capacity unless it is established that they lack capacity
(b) a person is not to be treated as unable to make a decision:
(i) unless all practicable steps to help the person to do so have been taken without success, nor
(ii) merely because the person makes an unwise decision.
(c) an act done, or decision made, under the Law for or on behalf of a person must be done, or made, in that person’s best interests, and
(d) before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of that person’s rights and freedom of action.
What is meant by best interests?
All decisions under the Capacity Law should be in the persons best interest.
In deciding what is in the best interests of a person who has made the lasting power of attorney, the person making that decision:
(a) must, so far as reasonably practicable, permit and encourage the person who has made the lasting power of attorney to participate, or to improve that person’s ability to participate, as fully as possible in any act done for them and any decision affecting them,
(b) must not make it merely on the basis of an unjustified assumption about what might be in the person who has made the lasting power of attorney’s best interests, by reference to factors including (but not limited to) their –
(i) age, gender, sexuality, disability, race or appearance, or
(ii) condition or an aspect of P’s behaviour
(c) must consider all the relevant information and circumstances and, in particular –
(A) whether it is likely that the person who has made the lasting power of attorney will at some time have capacity in relation to the matter in question, and
(B) if it appears likely that the person who has made the lasting power of attorney will have capacity, when that is likely to be,
Where the determination relates to life sustaining treatment, the person making the decision must not, in considering whether the treatment is in the person who has made the lasting power of attorney’s best interests, be motivated by a desire to bring about their death,
The person making the decision must consider, so far as is reasonably ascertainable –
(A) the person who has made the lasting power of attorney’s past and present wishes and feelings (and, in particular, any relevant written statement made by them when they had capacity), and
(B) the beliefs and values that would be likely to influence their decision if they had capacity, and
(C) any other factor that the person making the decision reasonably believes that the person who has made the lasting power of attorney would consider relevant.
The person making the decision must take into account, if it is practicable and appropriate to consult them, the views of –
(A) anyone named by the person who has made the lasting power of attorney as someone to be consulted on the matter in question or on matters of that kind,
(B) anyone engaged in caring for them or interested in their welfare,
(C) any attorney under a lasting power of attorney granted by them, and
(D) any guardian appointed for the person by a court,
as to what would be in the person who has made the lasting power of attorney’s best interests.
Guidance has not been published in Guernsey yet but if you want an easy read explanation of the principles and best interests these are similar to the UK and a UK easy read guide can be read by clicking the button below: