Jersey Unreported Judgments

Capacity - application to appoint a delegate

[2021]JRC150

Royal Court

(Probate and Protection)

21 May 2021

IN THE MATTER OF AN APPLICATION TO APPOINT A DELEGATE FOR P

AND IN THE MATTER OF ARTICLE 24 OF THE CAPACITY AND SELF-DETERMINATION (JERSEY) LAW 2016.

judgment

the Lieutenant bailiff:

1.        This is an unusual application, believed to be the first of its type.  P has resided at a care home since April 2020 and is 62 years old.  Some time ago he suffered a stroke affecting his left side and he cannot perform his daily functions without assistance.  His past medical history is one of excessive alcohol consumption, which has also affected his cognition and family relationships.   He appears to be friendless and has no links with his family. 

2.        The Judicial Greffe was first in receipt of a capacity assessment in respect of P nearly a year ago.  Unfortunately, because no delegates were forthcoming, no application for the appointment of a delegate could be made before now.  What seems to have triggered the current application is P's admission to hospital in February 2021.  During that period of hospitalisation, the manager of the care home in which he lives served notice on P and refused to take him back because of substantial outstanding fees; as of 14^th April, 2021, the outstanding balance was £48,958.00, increasing weekly by £941.50. 

3.        As P was ready to be discharged, and because his accommodation at the care home was at risk, the Health and Social Services Department came to a temporary financial arrangement with the care home while P's financial position was resolved. 

4.        On 16^th February, 2021, a further capacity assessment was carried out on P by Miss Ewelina Czachor, a Hospital Social Worker with Health and Community Services.  In her professional opinion, P is unable to manage his property and affairs because of an impairment or disturbance of the functioning of his mind or brain.  In support of her assessment, Miss Czachor attached a copy of a letter dated 16^th February, 2021, from Dr Walker at the General Hospital to Dr Loane of the Co-op Medical Practice. 

5.        The Jurats were satisfied that P is unable to manage his property and affairs.

6.        Miss Bianca Silva, a Senior Practitioner within the Health and Social Services Department, brings this application seeking the appointment of Mr Tobias Farlan, who is Capacity and Liberty Officer within the same Department, as delegate for P.  He is a trusted public servant, but his role does not extend to his providing delegate services.  We formed the impression that Mr. Farlan had agreed to assist out of the goodness of his heart, with a view to injecting some progress into this matter; it has stalled for at least a year.  Indeed, we were told that if Mr. Farlan were to leave his role with the Government of Jersey, applications of this type might well continue to stall as they have done to date.

7.        Mr. Farlan has indicated that he is happy to assume the role of delegate with limited scope in order to assist individuals who appear to have, "fallen through a gap".  They have few assets, may or may not be receiving benefits to which they are entitled, and are sometimes accruing debt through non-payment of care fees (as indeed in the case of P).  No one else is willing to act and support these individuals, and so Mr. Farlan is for such persons a delegate of last resort.  We are aware that he has, for example, already assisted a number of individuals by being appointed delegate purely to sign their supported tenancy agreements where no-one else is willing to sign them.

8.        The extent of P's assets, if any, is wholly unknown.  Certain of the orders sought in the application are with a view to enabling Mr. Farlan to obtain some clarity around this issue.  He is not, as we have said, a professional delegate, and in our view quite understandably envisages that this appointment and indeed future ones will be limited in scope in terms of his powers and duties.  In this case he has agreed to be appointed delegate for the express and limited purpose of regularising P's affairs, at the conclusion of which process he would like his delegateship to cease and to be discharged from the role.

9.        Before proceeding further with the substantive application, we must consider Paragraph 10.12 of the Code of Practice issued under the Capacity and Self-Determination (Jersey) Law 2016 ("the 2016 Law"), which provides as follows:

"Paid care workers should not agree to act as a delegate because of the possible conflict of interest.  However, the Court can appoint someone who has a professional role within the Department.  In this situation, the Court will need to be satisfied that there is no conflict of interest before making such an appointment."

10.      Mr. Farlan, who as we have said is a paid public servant, informed us that he will not be seeking any fees for the provision of his services in this matter.  We were satisfied that there is no risk of conflict of interest in this case and having regard to all the information that was before the Court, considered him to be a fit and proper person to be appointed delegate.  We accordingly administered the oath of office of delegate to him. 

11.      At his request, we ordered that the scope of Mr. Farlan's authority be limited to the following actions:

(i)        signing a LTC Scheme application on behalf of P;

(ii)       making enquiry of the Jersey clearing banks and community bank to ascertain whether P holds accounts with any of them;

(iii)      conducting such searches as he may think appropriate to ascertain whether or not P has any undeclared assets and/or properties overseas;

(iv)      exercising authority over any of P's current and savings bank accounts found as a result of the enquiries made, including using the funds to settle P's liabilities and the setting up of direct debits and closing the accounts as required;

(v)       upon the successful conclusion of the LTC application Mr. Farlan shall:

(a)       repay the liability accrued by the Health and Community Services by the LTC Scheme by way of the temporary arrangement, if P's funds permit it;

(b)       settle the outstanding debt due to P's general practitioner;

(c)       instruct the Customer & Local Services Department (C&LSD) to pay future LTC fees directly to P's care home on his behalf;

(d)       instruct the C&LSD to pay sundry monies due to P directly to his residential or nursing home to be held by that organisation for P's benefit and personal use, pursuant to Article 10 of the 2016 Law and

(e)       instruct C&LSD to administer and apply P's Social Security benefits on P's behalf.

12.      At Mr. Farlan's request, we further ordered that, once the LTC benefit is in place for P and his financial affairs have been structured as set out above in P's best interests, Mr. Farlan shall be discharged from the role as delegate upon furnishing the Judicial Greffe with his delegate final report in accordance with Article 8(6)(b) of the Capacity and Self-Determination (Miscellaneous Provisions and Prescribed Fees and Forms) (Jersey) Order 2018.

Authorities

Capacity and Self-Determination (Jersey) Law 2016. 

Capacity and Self-Determination (Miscellaneous Provisions and Prescribed Fees and Forms) (Jersey) Order 2018