[2007]JRC232
royal court
(Samedi Division)
10th December 2007
Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Tibbo and Allo. |
In the matter of the Curatorship of Mrs B
Advocate S. Drew for the Attorney General.
Mr B represented himself.
judgment
the commissioner:
1. Mrs B, a widow, is 80 and lives in Jersey where she has resided since 1948. She has suffered a stroke and a curator needs to be appointed to manage her affairs. Her assets comprise a property currently in the course of being sold for some £265,000 and cash and investments of some £400,000. She has one surviving son, Mr B who is her sole heir. Mr B is a professional architect who lives in Cambridge and who, with the support of Mrs B's few relations in Jersey, wishes to be appointed her curator. The issue before this Court is whether Mr B can be appointed as his mother's curator, notwithstanding the fact, that he does not reside in the Island.
2. There is no express requirement under the relevant statutory provision namely Article 43 of the Mental Health (Jersey) Law 1969 ("the Law") for a curator to be resident in Jersey. Furthermore a curator ceasing to be resident in the Island is not one of the grounds upon which he or she can be removed as curator (Article 43 (12)) although the court could no doubt remove a curator if he or she ceased to be resident in the exercise of its inherent powers. In the absence of any express requirement for residence in the Island Mr Drew, for the Attorney General, argued that the Law implies that a curator will be resident so as to be amenable to the Court's jurisdiction.
3. There is no judgment of the Court where this issue has been considered but we were shown a copy of a letter written by the Bailiff on the 14th March, 2003, in which he confirmed to the Solicitor General that in the ordinary course of events a non-resident curator should not be appointed to administer the affairs of an interdict resident in Jersey and the Law Officers' Department should continue to advise that non-resident curators should not be appointed. The Solicitor General's enquiry had been spurred by a decision of the Court to appoint a person residing in Canada as a curator. It is clear from the letter that this advice was based upon the difficulties that might arise if a non-resident was appointed. Mr Drew expanded upon the practical difficulties which would arise by the appointment of a non-resident curator as follows:
(i) In the event of the curator being the subject of criminal proceedings, then if he lived in any part of the United Kingdom a warrant for his arrest would have to be issued and executed under the provisions of the Indictable Offences Act 1848 (as amended), which would not apply to statutory offences under the Law, and if he lived further afield he would have to be extradited, if possible, incurring costs that would fall to be met by the tax payer.
(ii) The Registrar could encounter problems both in conducting the preliminary interview and in dealing with the curator thereafter, in particular because any meetings would require the curator to travel to the Island. The fact of non residence could, in the view of the Registrar, give rise to delays in the filing of the annual accounts, the key method by which curators are regulated.
(iii) Any civil proceedings brought by a replacement curator or the estate of the interdict to recover assets from the non-resident curator would have to be undertaken in the jurisdiction in which he or she resides, potentially at greater cost. The prospects of those proceedings would depend upon the legal system in that jurisdiction.
4. It is clear that under English law non-residence is no bar to the appointment by the Court of Protection of a "deputy" which is the nearest equivalent to a curator. The Codes of Practice issued under the Mental Capacity Act 2005 provides as follows:
"It is for the Court to decide who to appoint as a deputy. Different skills may be required depending on whether deputies' decisions will be about a persons welfare (including health care), their finances or both. The Court will decide whether the proposed deputies are reliable and trustworthy and have an appropriate level of skill and confidence to carry out the necessary tasks.
In the majority of cases, the deputy is likely to be a family member or someone who knows the person well. But in some cases the Court may decide to appoint a deputy who is independent of the family (for example, where the person's affairs or care and needs are particularly complicated)."
Thus under English law the affairs of an interdict can be managed by someone outside that jurisdiction.
5. As the Law does not proscribe the appointment of non resident curators, it follows that there is a jurisdiction in the Court to make such an appointment. Whether it should do so is a matter of discretion to be exercised in accordance with judicial policy. Consistent with the view expressed by the Bailiff and for the reasons set out by Mr Drew and below, it is the policy of the Court for such an appointment to made only in very exceptional circumstances.
6. In considering the exercise of the Court's power to appoint a curator, it is the interests of the interdict that are paramount. The imposition of a curatorship is a drastic order removing as it does a person's control over his or her assets. It seems to us objectionable as a matter of principle for the Court, without very good cause, to remove control of the interdict's assets by imposing a Curatorship and then passing control of those assets to someone outside the jurisdiction and therefore beyond the control of the Court. The assets of the interdict must remain available to be applied for the benefit of the interdict and the only way the Court can ensure that the curator complies with his or her duties and obligations under the Law is through the exercise of its jurisdiction over the person of the curator. If the curator is outside the jurisdiction of the Court, then the court has no means of enforcing those duties and obligations.
7. We accept that there is nothing (other than possible safeguards in Article 43(17) of the Law) to prevent a Jersey resident curator from transferring the movable property of the interdict out of the Island but that curator remains subject to the jurisdiction of the Court whose orders can be enforced against his or her person. If a non resident curator were to do so then both the movable assets and their control will have been removed from the jurisdiction. An interdict who recovers his or her mental capacity and is reinstated or in the event of death his or her estate or a replacement curator would have very serious grounds for complaint if it was found that this was the position. In extremis there may be nothing in the Island to fund recovery proceedings abroad. Thus it will only be in very exceptional circumstances that it will be in the interests of the interdict for control of his or her assets to be passed to someone over whom the court has no jurisdiction.
8. In this case the prospective curator Mr B appeared before us and argued eloquently and persuasively for his appointment. He is a professional architect employed in Cambridge owning his own house and having valuable pension rights. He has two adult children attending university. He is clearly devoted to his mother, having assisted with her affairs over many years. He has visited the Island regularly to see her when she was well and much more frequently now she has been taken ill. As he put it to us, he has a basic need and desire to help with the care of his mother which includes looking after her affairs, and does not see why his mother's affairs should be looked after by a local professional at no doubt material cost. There are good travel connections between Jersey and Cambridge so he can get to the Island quickly without undue cost. In addition he is subject to the jurisdiction of the English Courts through whom his civil obligations as curator can no doubt be enforced, and, in the unlikely event of criminal defalcation, a warrant for his arrest issued in Jersey can be backed and executed in the UK so that he can be brought back to the Island to face any criminal sanctions that might be applicable. With telephone and e-mail he can communicate without difficulty with the Registrar and can attend upon him if a meeting is necessary. He has no brothers or sisters resident in Jersey willing and able to take on the role and his mother's few relations here support his appointment. He is clearly reliable, competent and trustworthy and has his mother's best interests at heart.
9. These are all powerful arguments in favour of his appointment but is it in the interests of Mrs B that he is appointed? We are satisfied from the evidence we have heard that Mrs B would have wished her son to continue looking after her affairs and would not have wished for the appointment of a professional agent. We are conscious of her age and health and the fact that Mr B is her only child and heir. He is a person of substance long settled in Cambridge and under the jurisdiction of the English Courts. His mother's affairs, which effectively he has looked after for many years, are straight forward.
10. Assuming the necessary competence and skill, a loving child can bring to a curatorship a level of care and attention that no professional agent can replicate. It is a question of balancing the benefit of that to the interdict against the risks involved in control of the assets passing out of the jurisdiction, risks which on the facts of this case we regard as minimal. In our view the benefit to Mrs B of her son's appointment outweighs those risks.
11. Accordingly we find that the facts of this case are exceptional and justify the appointment of Mr B as curator of Mrs B notwithstanding that he is not resident in the Island. We recommend to the Court dealing with his appointment that it give consideration to making it a condition of his appointment that:-
(i) Mrs B's tangible movable property should remain within the Island;
(ii) Any bank accounts should be maintained with banks within the Island;
(iii) Any investments undertaken on her behalf should be made through a Jersey nominee or intermediary.
His actual appointment will of course have to await and is subject to the carrying out of the usual checks yet to be conducted by the Registrar.
Authorities
Mental Health (Jersey) Law 1969.
Indictable Offences Act 1848 (as amended).
Mental Capacity Act 2005.