What is a curator?
A curator is the person appointed by the Royal Court under the Mental Health (Jersey) Law, 1969 to conduct the affairs of someone found by the court to be incapable of managing his own property and affairs by reason of mental disorder or addiction (known as an interdict).
Curatorship or power of attorney?
A Power of Attorney is an authorisation to represent a person in respect of their legal affairs. In Jersey, for an attorney to have authority to act, the donor of the Power of Attorney must to have mental capacity to give instructions. If mental capacity to give instructions is lost the only way in which somebody can act on behalf of another is if they are appointed as a Curator.
This is different from the position in England where a donor can grant a Lasting Power of Attorney which if registered means that the attorney can continue to act after the donor is unable to give instructions.
How is a curator appointed?
Usually a recommendation is made by the person's GP to the Solicitor General, indicating whether any family member would be a willing Curator. The potential Curator will be interviewed and assessed to see whether they could manage the responsibility of being a Curator.
The Royal Court is responsible for making the final decision about who the Curator should be, and if there is no family member or friend suitable to take on the role of curator the Court will appoint a legal professional.
A curator is entitled to receive by way of remuneration a percentage of the interdict's gross annual income in accordance with scales fixed by rules of the Court. Where the curator requires the assistance of a professional adviser, the charges of that adviser can be paid out of the interdict's property. A curator will also be entitled to expenses incurred in connection with the administration of the interdicts.
The Curator is required to take the oath undertaking to administer the assets of the Interdict and to deliver to the Judicial Greffier, within 90 days of his appointment, an inventory of all the property of the interdict, after which annual accounts must be submitted, verified on oath.
What are the powers of a curator?
A curator has the power to do or arrange for all such things to be done in relation to the property and affairs of the interdict as are necessary for the maintenance of the interdict. This will include making provision for other persons for whom the interdict might be expected to provide including the family of the interdict and for the management and administration of the interdict's property and affairs.
A curator may with the approval of the Court sell or acquire property on behalf of the interdict if he thinks it is appropriate.
How does a curatorship come to an end?
A curatorship will come to an end:-
- on the death of the interdict;
- in the event of the interdict becoming able to manage and administer his/her own affairs;
- if a curator delivers his resignation in writing to the Court, through the Attorney-General.
Changes on the horizon
The Draft Capacity and Self-Determination Law ("New Law")has been developed alongside a new Mental Health Law and will provide a new legal framework for assessing whether a person has capacity and a process to ensure that any decision made for the person is made by appropriate individuals and in the person's best interests.
The new Law is aimed at empowering people to make their own decisions whenever possible and encouraging them to plan ahead in case they are unable to make decisions in the future. A person will be able to appoint a person(s) to make decisions on their behalf if they lose capacity is relation to (i) health and welfare –daily routine (e.g. eating and what to wear), medical care, moving into a care home and life-sustaining treatment; and (ii) property and affairs – decisions about money and property.
Where a person loses capacity and has not appointed an attorney the Royal Court is given power to make decisions on behalf of an individual who lacks capacity, and power to appoint a "delegate". The delegate's appointment will be limited in terms of the scope of the decisions they can make and the length of time they can do it for, as ordered by the Court.
Anyone aged 16 years or over will be able to make advance decisions to refuse treatment they should lose capacity to give or refuse consent in the future.
The New Law is expected to come into force in 2018.
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.