The States of Jersey have finally approved reforms to the Island's customary law and rules regarding the governance and administration of property belonging to minors by approving the adoption of the Children's Property and Tuteurs (Jersey) Law 2016 (the New Law). The New Law is now in force.
In this briefing we discuss the current regime of Tutelles and how the New Law proposes to change this regime.
What is the current regime?
The current regime regarding the governance and administration of properly belonging to minors dates back to 1862. In summary, the current regime provides that, in respect of minors (those under 18) who are not considered legally competent to manage their own property, that in the event the minor inherits, acquires or is gifted property, that the 1862 law requires a mechanism called a Tutelle to be formed (a form of guardianship) to manage the minor's property. A Tutelle (a form of guardianship committee) consists of seven individuals (generally four from the paternal side and three from the maternal side); one of these assumes the role of Tuteur (the head of the Tutelle or guardian) whilst the other six members are the Electeurs. The Tuteur's job (supported by the Electeurs) is to work together to administer and protect the minor's financial interests until the minor reaches the age of 18 whereby the property is handed over to the minor.
For further information on Tutelles please see our earlier briefing entitled: "A Guide to Tutelles in Jersey" a copy of which can be accessed here.
What are the issues with the current regime?
The current regime has a number of drawbacks which include, amongst others:
- many Electeurs not understanding the extent of their potential liability (they are liable for the defaults of the Tuteur but do not have any real control over his or her actions);
- gathering together seven members to form a Tutelle is administratively burdensome;
- there is no clear process for a Tuteur to resign or be removed from office; and
- there is no consideration as to the suitability of the person nominated for the appointment of Tuteur;
What changes does the New Law bring in?
Abolishment of role of Electeurs
The New Law abolishes the office of Electeurs but keeps the office of Tuteur. The Tuteur is still appointed by the Royal Court and such an application for the appointment of Tuteur may only be made by one of the following individuals:
- a parent or relative of the minor;
- a guardian of the minor;
- a creditor of the minor;
- the Attorney General; or
- any other person who obtains the leave of the Royal Court.
It is important to note that a Tuteur can only be an individual (for example the minor's parent or guardian). Corporate bodies cannot be appointed as Tuteurs. If the Royal Court considers it appropriate it may appoint more than one person to act as Tuteur.
Such appointment will take effect once the appointed individual(s) take the following oath (which appears in Schedule 1 of the New Law):
You swear and promise before God that you will well and faithfully discharge the duties of tuteur in relation to the property of [Name of Minor] in respect of which you have been appointed; that you will administer and safeguard such property with equal or event greater concern than you would manifest for your own; that you will deliver good and faithful accounts to whomsoever may be entitled to demand the same; and that you will generally discharge all the duties appertaining to the said office.
Once appointed, the Tuteur will act alone and will have the sole responsibility for administering and protecting the assets for the benefit of the minor. The Tuteur is entitled to remuneration (at a rate specified in the rules of court) and reimbursement for their reasonably incurred expenses in the discharge of their duties.
The individual(s) appointed as Tuteur shall continue in their role until the minor attains the age of majority (18 years under Jersey law) or the minor dies or the Tuteur is removed from their office by the Royal Court. When the Tuteur's position ceases due to the minor attaining the age of majority or the minor dying, the Tuteur must take all necessary steps to transfer the administration of the minor's property to the minor or to the executor of the minor's estate or to any curator of the minor (as applicable).
Increase in value of property requiring a Tutelle
Following the introduction of the New Law a Tutelle will only be necessary where a minor inherits either movable property over £25,000 or immovable property of any value. A Tuteur need not be, but nevertheless may be appointed if the value of the movable property inherited, acquired or gifted to the minor is less than £25,000 or, if the minor's property is already administered by an administrator, executor or trustee.
Introduction of statutory duties on Tuteurs
The New Law introduces certain duties which a Tuteur will need to adhere to. These include:
- delivering to the Judicial Greffier (an officer of the Royal Court) an inventory of the minor's property within 90 days of their appointment as Tuteur;
- preparing and submitting to the Judicial Greffier annual accounts in connection with the administration of the property; and
- delivering all accounts to the Judicial Greffier and all other relevant persons upon cessation of the Tuteur's position.
If a Tuteur were to fail to comply with any of the duties mentioned above, without reasonable excuse, they will have committed an offence which could result in them receiving a fine of up to £2,000.
The New Law also makes it an offence for any person to administer a minor's property where the New Law requires that a Tuteur should be appointed, but no such Tuteur has been appointed. Moreover the New Law makes it an offence for another person, other than a person employed by a Tuteur, to administer the minor's property. If any individual commits either of these offences they could be liable to an unlimited fine and/or imprisonment of up to 12 months.
The Royal Court's Role
As under the current regime an application will have to be made to the Royal Court for the formal appointment of a Tuteur; however this does not prevent the Royal Court from appointing Tuteurs in other cases that the Court considers appropriate.
The New Law also grants the Royal Court a supervisory role and the power to issue directions to in respect of:
- the administration of the property;
- imposing restrictions on the Tuteur's powers as it sees fit;
- the administration of the minor's property regardless of whether a Tuteur has been appointed;
- transferring the administration of the property from a Tuteur to another person; or
- removing a Tuteur from their office.
The right to apply to the Royal Court for directions vests in the Tuteur, the Attorney General and any other person provided they obtain the leave of the Royal Court to make such an application.
As a transitional measure, the States have adopted the Children's Property and Tuteurs (Transitional Provisions) (Jersey) Order 2016 (the Order). It is expected that this will come into force on the same date as the New Law.
The Order makes it clear that, where a Tutelle is in existence immediately before the commencement date of the New Law, the provisions under the 1862 law will remain applicable to the Tutelle and the Tuteur.
Moreover, any right of action against an existing Tuteur or Electeur of a Tutelle which has accrued at the commencement date of the New Law under any rule of customary law or any provision of written law in force immediately before the commencement date of the New Law would still be applicable.
Notwithstanding this, the Order does permit for an application to be made to the Royal Court for the appointment of a Tuteur in respect of a Tutelle existing before the commencement date of the New Law.
The introduction of the New Law will be a welcome update to this area of law and practice and should lead to a simplification of the process by having only one individual in charge of administering the Tutelle. This should maintain a high level of protection for minors but in a more cost effective and streamlined way.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.