Islanders in the Bailiwick of Guernsey will soon be able to plan for a time when their mental capacity may be impaired.
The current legal position has not been refreshed for many years and does not allow for someone to decide how their affairs should be conducted at a time when they are no longer able to make decisions. This has proved to be onerous on loved ones and out of step with the UK, where legislation protecting vulnerable members of society in decision-making on their behalf has been in place for more than a decade.
The Capacity (Bailiwick of Guernsey) Law, 2020
The proposed new legal framework has been before the States on a number of occasions and has received widespread support.
Unforeseen capacity issues can develop from dementia, mental health problems or physical illness, including a stroke, serious infection or unconsciousness. There is currently no real scrutiny or an appeal system for a patient.
The law will set out a statutory test to decide whether a person has the mental capacity to make a specific decision. Once someone has been assessed to lack capacity it will then establish the ‘best interests principle’ in relation to their decision-making.
Lasting Power of Attorney
Under the proposed new law, it is intended that Lasting Powers of Attorney (“LPAs”) will be introduced for health and welfare, and property and financial affairs. This means that someone (let’s call them a ‘donor’) can establish an LPA at a time when they have mental capacity and can choose how they want their affairs to be handled should a time come when they are no longer able to make a decision for themselves. This removes the need for the appointment of a guardian or for the guardian to ‘guess’ what the donor’s wishes would have been in a given situation after they had lost capacity.
Types of Lasting Powers of Attorney
Health and welfare
A health and welfare LPA would set out the donor’s decisions about things like daily routine (e.g. what to eat and what to wear), medical care, moving into a care home and life-sustaining treatment. This type of LPA would not have any practical effect until such time as the person loses capacity to make their own decisions.
Property and financial affairs
A property and financial affairs LPA would set out the donor’s decisions about money and property, such as paying bills, collecting benefits and selling assets such as the home. This type of LPA could potentially be used while the person still has capacity, if permission is given in the Lasting Power of Attorney for that to happen.
Planning for future care and treatment
The proposed law makes significant strides in giving people a say in relation to future medical treatment and care.
An Advanced Care Plan (an “ACP”) allows an individual to express their future wishes regarding their care, in advance of a time when they may lose the mental capacity to make their own decision.
It should be noted that the ACP is an expression of wishes, not a directive. For example, it can’t be used to request admission to a specific care home or make the States provide care of a certain type or standard.
Significantly, the proposed law provides the ability for people to decide to refuse future treatment. If a valid Advanced Decision to Refuse Treatment (“ADRT”) has been made, any medical professional treating the person cannot provide any treatment specified in the ADRT.
Protective Authorisation Scheme
A Protective Authorisation Scheme is intended to be introduced to protect the rights of people without capacity who are deprived of their liberty. The aim is to ensure that restrictions on their freedom of movement and autonomy comply with Article 5 of the European Convention on Human Rights. Article 5 protects individuals from unlawful deprivation of liberty but also recognises that sometimes it is necessary to detain a person of "unsound mind". The role of Capacity Professional will be introduced to oversee the authorisation process.
Independent Capacity Representatives
If someone has no family of friends eligible to represent them, this will not mean they are left unprotected by the proposed new legislation.
The Capacity (Bailiwick of Guernsey) Law, 2020 is likely to see the introduction of independent capacity representatives to provide advocacy support to those who lack capacity and who do not have family or friends who can provide support.
This substantial piece of legislation has been long-awaited in Guernsey and is an important step in protecting vulnerable islanders and their families.