Charity puts the spotlight on "urgent need" for lasting powers of attorney

Thursday 28 October 2021

A local charity is lobbying for legal reform to guardianship rights to be enacted, in order to address a "distressing" and "upsetting" struggle for an increasing number of families.

Citizens' Advice's report into Powers of Attorney and Guardianship was based on enquiries to the charity between January 2020 to June 2021. It analysed the information received from 122 people who have come through the charity’s doors and their main concerns about the current laws.

Islanders who came to Citizens Advice for help were generally unaware of the expense involved. They also reported concerns around why the legal reform approved by the States in April 2020 is yet to materialise.

Pictured: The subjects of enquiries Citizens Advice received over an 18-month period for Powers Of Attorney/Guardianship.

Citizens' Advice CEO Kerry Ciotti said: "We’re receiving an increasing number of enquiries from clients who are aware of the provision in the UK and Jersey for a Lasting Power of Attorney, which allows an individual with mental capacity to appoint one or more people to make decisions on their behalf if accident or illness prevents them from doing so in the future.

“Most of these clients have also seen recent media coverage of a Guernsey law being drafted to this effect and now want to access that provision. Sadly that’s not yet possible, and we are urging States members to implement Lasting Powers of Attorney without further delay."

The Capacity (Bailiwick of Guernsey) Law, 2020 has been registered and has undergone a period of consultation, however its implementation has been “further delayed” until 2022, the charity believes. Express has asked the States to clarify the timeframe of its delivery. 

“This is a change that really would help people who are facing a very difficult and upsetting issue,” said Mrs Ciotti. “For many families the introduction of a Lasting Power of Attorney cannot come too soon.”

Most of the enquiries to the charity come from people with concerns about the capacity of their ageing parents," said Mrs Ciotti.

“What we’re seeing is that most relate to reduced or reducing mental capacity, from early onset through to the more advanced stages. We’ve also seen a direct link to financial problems, typically the need to sell a house to fund care fees. 

Pictured: The Citizens’ Manifesto was sent to all candidates in the run-up to last September’s Island-wide States election. It highlighted four issues in particular that the charity believed could be "really quick wins" for the 2020-2025 Assembly - insolvency, lasting power of attorney, rental deposits and consumer protection.

She continued: “The data points to an increasing need for Guardianship arrangements. In Guernsey that requires an advocate and for some that’s prohibitively expensive, although our clients were generally unaware of the costs

“On the other hand, those clients who were aware of the likely sums specifically enquired about how to avoid this expense, which they could not afford. It’s clearly a very real concern for many islanders.”

The current laws governing the Powers of Attorney

The Powers of Attorney and Affidavits (Bailiwick of Guernsey) Law 1995 allows someone with mental capacity to confer authority/power on another individual or group of others (the attorney) to do, on behalf of the donor, anything which the donor could lawfully do himself.

In Guernsey, the donor currently must have the mental capacity to be able to confer the power(s) on the attorney. Once the donor becomes mentally incapable, the Powers of Attorney will lapse.

There is currently no provision for Enduring or Lasting Powers of Attorney under Guernsey Law. Obtaining Powers of Attorney and Guardianship in Guernsey each involve the use of an advocate and therefore significant cost.