Jersey Unreported Judgments

Hearing (Civil - application to seek order that an Act of Court dated 29 March 2018 be registered in the Public Registry of the Island.

[2018]JRC075

Royal Court

(Samedi)

23 April 2018

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Nicolle and Dulake

IN THE MATTER OF THE REPRESENTATION RELATING TO VIOLET BETTY MATTHEWS

AND IN THE MATTER OF FELCROFT

Advocate J. M. Renouf for the Representors.

judgment

the deputy bailiff:

1.        By representation dated the 5^th April, 2018, Richard Borlase Matthews, Nigel Graham Matthews and Jennifer Mary Matthews (the Representors) made an application to this Court seeking an order that an Act of Court dated the 29^th March, 2018, (the Act of Court) be registered in the Public Registry of the Island. 

2.        Violet Betty Matthews (Mrs Matthews) was born on the 11^th June, 1931, and resides in East Grinstead, West Sussex.  In 2015 she was diagnosed as suffering from Mixed Vascular Dementia and Alzheimer's disease as well as a number of other ailments.  Her memory condition is such that now she is exempted from council tax and receives full-time care from one of her sons who visits her three times daily, professional carers who also visit three times a day with daily Meals on Wheels visits and daily domestic help for cleaning, shopping and other domestic tasks.  She has lost the capacity to transact. 

3.        Prior to losing capacity, on the 12^th February, 2001, Mrs Matthews appointed the Representors by Enduring Power of Attorney (EPA) jointly to be her attorneys.  The EPA was registered by the Office of the Public Guardian on the 17^th August, 2015. 

4.        One of the Representors, Miss Jenny Matthews, owns the freehold of the property known as Felcroft, Les Champs Park Estate, St Helier (Felcroft) which was left to her by her late father who died in 1999.  At the time of his death he was married to Mrs Matthews which gives her a right to claim dower over Felcroft. 

5.        The Representors wish to be a party to a contract of sale of Felcroft in order to relinquish Mrs Matthews' right to claim dower over that property.  She does not hold any other property in Jersey. 

6.        The English legal advice obtained by the Representors, which we have seen, is to the effect that they did not need to seek the approval of the Court of Protection and could proceed to deal with the sale on Mrs Matthews' behalf. 

7.        An application was made by Representation to the Judicial Greffe to register the EPA in the Rolls of the Royal Court.  That application was granted and the Act of Court issued. 

8.        Subsequently, on the 6^th April, 2018, the present Representation was placed before the Samedi Court but concerns were raised as to whether it was possible or proper for a foreign EPA to be registered in the Public Registry.  Accordingly the matter was adjourned to be argued before us. 

9.        The legal position with regard to Powers of Attorney generally is set out in the Powers of Attorney (Jersey) Law 1995 (the POA Law).  Article 3 of the POA Law provides as follows:-

"3.      Registrable powers of attorney

(1)       A power of attorney which is -

(a)       intended to be used to effect a transaction which is required to be registered; or

(b)       required to be registered by any enactment other than the provision of this law,

Is in this law referred to as a 'registrable power of attorney' and any such       power of attorney shall not be exercisable to effect any such transaction or in connection with the matters to which the enactment relates, as the case may be, until the power has been registered.

(2)       A registrable power of attorney shall, subject to paragraph (5), be duly executed if it is signed by the donor, or acknowledged by the donor to have been signed by the donor, in the presence of one witness who is not     a party to the power of attorney and who -

(a)       if the power is executed in Jersey, is a Jurat of the Royal Court, a member of the States, an advocate of the Royal Court, a solicitor or a notary public; or

(b)       if the power is executed outside Jersey, is one of the persons mentioned in sub-paragraph (a) or one of the persons specified in Schedule 1.

(3)       ....

(4)       ....

(5)       The Royal Court may accept as duly executed a registrable power of attorney which is executed outside Jersey and attested by a witness other      than a person mentioned in paragraph (2)(a) or (b), either -

(a)       .....

(b)       for such other reason as the Court may think fit.

(6)       .....

(7)       ...."

10.      The EPA is not witnessed by any person covered by sub-paragraph 2(a) or (b) of the POA Law.  Mrs Matthews no longer has capacity to execute a power of attorney with a witness authorised by that law.  

11.      The normal mechanism by which an adult person lacking in capacity such as Mrs Matthews can transact in Jersey is via a curatorship.  The position with regard to curatorships as set in Article 43 of the Mental Health (Jersey) Law 1969 which, in its twenty-four sub-paragraphs, sets out how a curator may be appointed, the duration of their office and their duties.  It is not necessary to set out those provisions in extenso but it is clear that in general a curatorship is created on application by the Attorney General, lasts until the death of the interdict and the curator has a number of powers and obligations to get in, control and provide for the administration and management of the interdict's affairs.  A curator who wishes to transact or deal with any property shall apply to the Court and the curator then has obligations to create an inventory of estate of the interdict and thereafter to do annual accounts. 

12.      It does not appear to us that a curatorship is an appropriate way of proceeding in this case.  Not only is it a cumbersome mechanism for dealing with a single transaction of the type anticipated here (imposing as it does continuing duties and obligations on the curator) but Mrs Matthews is not of course resident in Jersey and curators are not generally appointed in respect of a person not resident in Jersey unless they have a continuing interest in Jersey property. 

13.      Furthermore, we are informed that there is some measure of urgency and it would be necessary for another report relating to Mrs Matthews' mental capacity to be prepared and for the Law Officers' Department to be engaged in the process.  This will inevitably cause some delay. 

14.      It might at this point be appropriate to note that the States of Jersey has passed the Capacity and Self-Determination (Jersey) Law 2016 which is scheduled to come into force later in this year.  That provides for lasting powers of attorney in a manner that is somewhat similar to the system that obtains in the United Kingdom.  That does not assist in the present circumstances however. 

15.      The EPA is not a valid power of attorney in accordance with Jersey law because it has not been witnessed by a competent witness.  Similarly Jersey law has not previously recognised the continuing effect of any power of attorney when the grantor of that power has lost capacity.  In other words when a person who has granted a valid power of attorney loses capacity the authority of the attorneys under that power of attorney thereby ceases. 

16.      This is reflected in Article 9(5) of the POA Law when provides:-

"A power of attorney, other than a power to which Article 5(2) applies, which has granted after the coming into force of this law is revoked by the death, incapacity or bankruptcy of the donor or, if the donor is a body corporate, by its bankruptcy or dissolution."

17.      Notwithstanding that general principle on the 25^th April, 2003, the Royal Court (De Veulle Lieutenant Bailiff presiding, assisted by Jurats Potter and Tibbo) ordered the registration of an order of the Court of Protection appointing a Representor as receiver in the matter of a lady with power to act in accordance with the terms of the said order.  The individual thus empowered had received an Enduring Power of Attorney in his favour which had been subsequently registered in the Court of Protection of England and Wales.  This is the only example put before us. 

18.      There is no reasoning given for the Courts' decision to make that order but it seems to us that it might be relevant to note that the Enduring Power of Attorney, which was given in effect by that order had been itself registered in the Court of Protection of England and Wales.  This, so we understand, is the equivalent of interdiction. 

19.      We are also informed that it has been impossible to obtain title insurance to cover the current circumstances. 

20.      Advocate Renouf argued before us that the Court should exercise an inherent jurisdiction and make the order sought by reason of comity.  He argues from the law relating to bankruptcy by way of analogy and referred to a number of cases. 

21.      In the matter of the bankruptcy of the First International Bank of Grenada Limited [2002] JLR Note 7 the court held that the court had a discretion to grant assistance to a liquidator or receiver from a country or territory not named under Article 48 of the Bankruptcy Désastre Jersey Law 1990 and, in relation to requests from the courts of friendly foreign states, the court should exercise its discretion in accordance with the principles of comity where there is evidence of reciprocity from the courts of that foreign state. 

22.      Similarly in the matter of the assets of Ablyazof [2012] (1) JLR 44 the court found that it had an inherent jurisdiction to recognise the appointment of receivers because there was sufficient connection between the defendant whose assets had been made the subject of the receivership order and the jurisdiction in which the receivers were appointed, namely a residence there. 

23.      Both of these cases are presented to us on the basis that they are examples of the court being prepared to recognise the validity of appointments to an office not known in Jersey on principles of comity and otherwise under the courts' inherent jurisdiction. 

24.      We are further informed by Advocate Renouf that he is aware (because of his offices' involvement in other matters) that the English Court of Protection would recognise a curatorship under Jersey law and give it effect upon application and an order of that Court to that effect.  Furthermore, and this seems to us to be an important point, this particular EPA has been registered with the Office of the Public Guardian.  This is significant because that registration is indicative of a lack of capacity on the part of the grantor, in this case Mrs Matthews, and is in effect one of the legal mechanisms in England and Wales where the affairs of a person lacking capacity are dealt with. 

25.      Were it not for the provisions of Article 9(5) of the POA Law we would have been minded to exercise the discretion afforded to us under Article 3(5)(b) of the POA law.  However it is clear that the donor is no longer of capacity and any POA whether valid on its surface or made valid by the exercise by this Court of a discretion, simply has no effect in those circumstances. 

26.      Is it then the case that there is no means of assisting the Representors other than possibly, a curatorship?  In our view that is not the case.  

27.      We look at this matter outside the confines of the consideration of a Power of Attorney. 

28.      The fact is that whether it is called a POA or not there exists in the United Kingdom a mechanism by which the properties and affairs of an interdict can be managed.  This is a combination of the EPA and its registration by the Office of the Public Guardian.  That combination entitles, so we understand it, the Representors to act in a manner analogous with a curator in Jersey. 

29.      In the circumstances, given our understanding that the English courts would uphold a Curatorship and accordingly there is reciprocity, we should seek if we can to uphold the mechanism by which English law deals with the property of a person lacking in capacity. 

30.      Naturally the Court would wish to be satisfied, as it is in this case, that a curatorship is not appropriate, and that the mechanism put forward is one understood and recognised by English law and by the courts of England and Wales to enable an interdict to transact.  As we have said in this case the EPA was registered by the Office of the Public Guardian on the 17^th August, 2015. 

31.      This, so it seems to us, is a sufficient and appropriate basis to exercise the Courts' inherent jurisdiction to order the registration of the Act of Court in the Public Registry for the limited purposes of the abandonment of dower set out above. 

32.      We do not intend hereby to provide for a mechanism for the registration generally of EPAs in Jersey to deal with Jersey assets.  It may very well be the case that for certain transactions and indeed a number of assets the Court would wish to be satisfied that a different mechanism is in place but that is for an argument on another day.  We have only heard argument on one side and although Advocate Renouf has done an excellent job in dealing with the Courts' queries and giving the matter thorough consideration we have not had the benefit of adversarial argument. 

33.      However in the circumstances of this case, in the light of the fact that the EPA was registered by the Office of the Public Guardian and given the relatively minor and simple nature of the single transaction proposed we exercise our inherent jurisdiction as aforesaid. 

Authorities

This Powers of Attorney (Jersey) Law 1995.

Mental Health (Jersey) Law 1969.

Capacity and Self-Determination (Jersey) Law 2016.

In the matter of the bankruptcy of the First International Bank of Grenada Limited [2002] JLR Note 7.

Bankruptcy Désastre Jersey Law 1990.

Ablyazof [2012] (1) JLR 44.