Jersey Unreported Judgments

Capacity.

[2024]JRC125

Royal Court

(Probate and Protection)

31 May 2024

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Le Heuzé and Berry

IN THE MATTER OF THE CAPACITY AND SELF-DETERMININATION (JERSEY) LAW 2016

AND

IN THE MATTER OF D

Advocate K. L. Kavanagh for the Attorney General

Advocate J. M. Lawrence for E

judgment

in private

the deputy bailiff:

Background

1.        ("D") is seventy-one years old and suffering from dementia.  She lives at the [Redacted] Care Home in [Redacted]. 

2.        Her daughter, ("E"), was appointed delegate to manage D's property and affairs on 1 March 2024. 

3.        E is the only child of D and her late husband, ("F").  This application concerns a property in Grouville ("the property") which was purchased by F and D as joint tenants in 1994.  Save for a period of five years between 2008 and 2013, the property has also been the home of E along with her school age daughter who has lived there rent free since 2013.

4.        E's partner has also lived in the property, rent free, since the end of 2018.

5.        D began to permanently reside at the care home in June 2023 and F died on 28 September 2023.  Until then, F had managed D's financial affairs. 

6.        On E being appointed as D's delegate on 1 March 2024, the question arose as to whether or not the property should be sold or rented out, and we convened the Attorney General as partie publique to a hearing on 29 April 2024 to determine this matter.

7.        The property is valued at approximately £700,000.  It can in theory be let out whilst E remains in occupation, as she and her partner occupy a small unit with a rental value of £1,850 per month and the rental value of the "main bungalow", is £2,000 per month.  However, there are works and improvements required to ensure that either or both unit comply with the Residential Tenancy (Jersey) Law 2011 and the way that the property is currently divided will apparently not make it easy to rent out either part of the property separate from the other.  For example, both units are accessed through the same front door.  The bungalow which was formerly occupied by F and D requires most work in terms of bringing it up to rentable standard. 

8.        D's liquid assets in terms of savings amount to approximately £56,000 and a monthly pension income of £4,844 but she has liabilities which as at 31 March 2024 are just over £18,000 on account of arrears of care home fees.  This sum will increase until she becomes in receipt of Care Level 4 benefit on 27 June 2024 at which stage this, along with her monthly income, will meet the entirety of her care home fees.  However, between 1 March and 27 June, the total sum that she will owe the care home will increase by £23,640 resulting her having net available funds as at the end of June 2024 in the sum of £28,726. 

9.        So far as is relevant, E is the sole heir under her parents' Wills and accordingly is likely to inherit the property or the balance of the proceeds of sale, at some point in the future.

10.     It is accepted that if D was able to cogently express her wishes, she would wish E to remain living in the property.  Unfortunately she is no longer able to communicate her wishes.

11.     We are grateful to the submissions made by the Attorney General.  We note that E chose to instruct an advocate to represent her, although she was notified on 1 March 2024 as that would not be necessary as the Attorney General, convened as partie publique, would address the Court on the matters of concern to it, namely whether or not the property needed to be let out or sold in the best interests of D. 

12.     The issues for determination were identified by the Attorney General as follows:

(i)        Whether D's property needs to be realised and sold or rented, or for E to pay rent at the market rate to meet D's care costs; and

(ii)       Whether E should continue to act as delegate for her mother's property and finance, or whether a conflict of interest arises which prevents her from acting in this capacity.

Best interests

13.     In making a decision under the Capacity and Self-Determination (Jersey) Law 2016 ("the 2016 Law"), the Court is guided by the core principles set out in Article 3, namely:

"(1) In the application of this Law -

(a) a person must be assumed to have capacity, unless it is shown that the person lacks capacity in the sense given to that expression by Article 4;

(b) a person is not to be treated (under Article 5 or otherwise) as unable to make a decision -

                       (i)         unless all practicable steps to enable that person to make the decision have been taken without success, nor

                       (ii) merely because the person makes an unwise decision; and

           (c) an act done, or a decision made, on behalf of a person lacking capacity must be done or made in the person's best interests. [Our emphasis added]

(2) Without derogation from the generality of the principle stated in paragraph (1)(c), before an act is done or a decision is made which is restrictive of the person's rights and freedom of action, regard must be had to whether the purpose for which the act or decision is needed can be achieved as effectively in a less restrictive way.

(3) In paragraph (1)(b) and Articles 2, 4, 5 and 6, "decision" means a decision which is not excluded by the operation of Article 7."

14.     As it is accepted that D no longer has capacity, the Court is concerned with D's best interests.

15.     Under Article 24(2)(a) of the 2016 Law, the Court has the power to make specific property and affairs decisions on behalf of D or to appoint a delegate to make decisions on her behalf D lacks capacity to make such a decision.  Article 24 provides:

"24 General power of the Court to make declarations and decisions, and to appoint delegates

(1) The Court may make declarations as to -

           (a) whether a person ("P" in this Part) has or lacks capacity to make a decision specified in the declaration;

           (b) whether P has or lacks capacity to make decisions on such matters as are described in the declaration;

           (c) the lawfulness of any act done, or proposed to be done, in relation to P.

and for the purpose of sub-paragraph (c), "act" includes a course of conduct.

(2) If P lacks capacity in relation to a matter concerning P's health or welfare or P's property and affairs, the Court may, on an application made to it under Article 25 -

           (a) by order make a decision on P's behalf as to the matter; or

           (b) appoint a delegate to make a decision on P's behalf as to such matters,

in accordance with this Part, and having regard in particular to Articles 3 to 6.

(3) In appointing a delegate the Court must ensure that the scope and duration of the appointment are no greater than reasonably necessary having regard to all relevant circumstances.

(4) Without derogation from Article 25, the Court may make an order, give directions or appoint a delegate on such terms as it considers are in P's best interests even though no application is before it for an order, directions or appointment in those terms.

(5) Having regard to the provisions of this Part and to Article 34 in particular, the Court may -

           (a) make such further orders;

           (b) give such directions; and

           (c) confer such powers, or impose such duties,

as the Court thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment under paragraph (2), including (where the Court is satisfied that it is in P's best interests to do so) varying or discharging any previous order.  [Emphasis added]

(6) In particular, in the exercise of its powers under paragraph (5), the Court may - (a) revoke the appointment of a delegate; or (b) vary the powers conferred on a delegate, if the Court is satisfied that the delegate has behaved, is behaving or proposes to behave in a way that contravenes the authority conferred by the Court or is not in P's best interests.

(7) Paragraph (8) applies where - (a) an application has been made to the Court under Article 25; and (b) the Court intends to exercise its powers under paragraph (2).

(8) Where this paragraph applies, the Court may, pending determination of the application, make an order or give directions in respect of any matter, if there is reason to believe that -

           (a) P lacks capacity as to the matter; and

           (b) it is in P's best interests that the order is made, or the directions are given, without delay.

(9) The specific powers conferred by this Article are without prejudice to or derogation from the general jurisdiction of the Court and the Court shall have, in relation to any proceedings under this Part, all such power to act of its own motion as it has in relation to any other proceedings."

16.     Accordingly, the Court is empowered to make orders and give directions in D's best interests in all circumstances, even if a delegate has been appointed.

17.     Article 28 of the 2016 Law sets out specific powers which may be exercised by the Court or by a delegate in relation to property and affairs which include the control and management of property.  Article 28(2) provides:

"(2) The sale, exchange, charging, gift or other disposition of P's property may not be carried out except in compliance with any conditions or restrictions imposed by the Court on such sale, exchange etc."

18.     In consequence of this provision all delegates are told when they are appointed that they cannot sell, charge or otherwise dispose of a person's immovable estate without returning to the Court for the Court's consent.

19.     Further, Article 32(1) provides:

"(1) The Court may make such orders or give such directions as it may consider appropriate for the purpose of maintaining or improving P's property or otherwise for the permanent benefit of P's property."

20.     Accordingly, it is clear that the Court has the power to deal with the matters before it.

21.     As to the qualifications and general provisions concerning delegates set out in Article 34 of the Law, the Court may require (see Article 34(8)) a delegate to provide to the Court such reports at such times or intervals as the Court may direct. 

22.     In respect of the powers of delegates under Article 35, a delegate must (Article 35(4)) "make all decisions on behalf of P in P's best interests and without undue delay".  Accordingly, E has a statutory duty under Article 35(4) of the 2016 Law to act in her mother's best interests at all times, and must make decisions in her best interests and without delay. 

23.     What are best interests?  Both the Court and / or the delegate must have regard to the best interests of a person lacking capacity.  Article 6 of the 2016 Law gives some guidance on what should be considered when making decisions on behalf of a person assessed as lacking capacity. 

24.     The Court considered "best interests" in the case of In the matter of P [2019] JRC 002 which was concerned with an application for authority to execute a will on behalf of P pursuant to Article 30 of the 2016 Law. As the Court noted at paragraph 17, the provisions of the 2016 Law are very similar to the Mental Capacity Act 2005 and as a result, the approach taken by the English courts is helpful by way of guidance. The following principles are extracted from the English case law. The concept of "best interests" is a broad one. As Holman J said in NHS Trust v MB and another [2006] EWHC 507 (Fam) at paragraph 16(v)):-

"Best interests are used in the widest sense and include every kind of consideration capable of impacting on the decision."

25.     A holistic approach is to be taken to the application of the best interests test.  In Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 the Supreme Court held at paragraph 26 that a holistic approach to determining "best interests" is not a "substituted judgment" test.  As Lewison J said In the matter of P [2009] EWHC 163 (Ch):-

"... the overarching principle is that any decision made on behalf of P must be made in P's best interests. This is not (necessarily) the same as enquiring what P would have decided if he or she had had capacity. As the explanatory notes to the Mental Capacity Bill explained:-

'best interests is not a test of 'substituted judgment" (what the person would have wanted), but rather it requires a determination to be made by applying an objective test as to what would be in the person's best interests'."

26.     Whilst the test is not one of "substituted judgment", it does require the Court to consider P's preferences and likely preferences (see Aintree v James at paragraph 24).

27.     Commissioner Sir William Bailhache, giving the judgment of the Court, referred in Re P (supra) to the following extract from the judgment of Morgan J in Re G (TJ) [2010] EWHC 3005 (COP):

"The best interests test involves identifying a number of relevant factors. The actual wishes of P can be a relevant factor, Section 4(6)(a) says so. The beliefs and values which would be likely to influence P's decision, if he had capacity to make the relevant decision, are a relevant factor, Section 4(6)(b) says so. The other factors which P would be likely to consider, if he had the capacity to consider them, are a relevant factor: Section 4(6)(c) says so. Accordingly, the balance sheet of factors which P would draw up, if he had capacity to make the decision, is a relevant factor for the Court's decision. Further, in most cases, the court will be able to determine what decision it is likely that P would have made, if he had capacity. In such a case, in my judgment P's balance sheet of factors and P's likely decision can be taken into account by the court. This involves an element of substituted judgment being taken into account, together with anything else which is relevant. However it is absolutely clear that the ultimate test for the court is the test of best interests and not the test of substituted judgment. Nonetheless, the substituted judgment can be relevant and is not excluded from consideration. As Hoffmann LJ said in the Bland case, the substituted judgment can be subsumed within the concept of best interests. That appeared to be the view of the Law Commission also (at para 55)." [emphasis added].

28.     Commissioner Bailhache agreed with these comments at paragraph 28:-

"28 However, we agree with the comments of Morgan J in Re G, namely that the statutory directions, in our case contained at Article 6(2)-(4) of the 2016 Law - may well have the practical effect that the outcome of the Court's consideration of best interests will not be far away from the outcome of a substituted judgment test. It will not inevitably be so, but in many circumstances this will be the outcome because the past and present wishes and feelings are likely to align themselves with the beliefs and values of that person, which would be likely to influence that person's decision if he or she did not lack capacity."

29.     Before identifying D's best interests, it is useful to have regard to various features of the Long Term Care Scheme which are germane to this case.

30.     We have referred to this already above.  It is the Court's understanding that from 27 June 2024 D's care costs will be paid in full.  We were also informed that should her liquid assets fall below £25,000 she may be eligible for a long term care property bond.  Apparently this is designed to protect homeowners from needing to sell their property to meet their care costs.  The bond allows borrowing against the value of the home without sale of the same.  We do not know if that is a matter that can be pursued on behalf of D in this case or whether it would be right to do so.  We note only that such an option may be available, and will require the consent of the Court.

31.     When considering the best interests, the Court or delegate must consider "all relevant circumstances, including in particular the matters set out in" paragraphs (2) to (4) of Article 6.  These considerations are:

"(2) Such a determination must include consideration of whether it is likely that the person lacking capacity will at some time have capacity in relation to the matter in question, and if so, when that is likely to be.

(3) Such a determination must include consideration, so far as the following matters are reasonably ascertainable, of -

           (a) the past and present wishes and feelings of the person lacking capacity as to the matter in question (including in particular any advance decision to refuse treatment or other written statement made by that person at a time when that person did not lack capacity);

           (b) the beliefs and values of that person which would be likely to influence that person's decision if that person did not lack capacity;

           (c) any other factors which that person would be likely to consider if that person did not lack capacity.

(4) Such a determination must take into account, if it is practicable and appropriate to consult the following persons, the views of -

           (a) anyone named by the person lacking capacity as someone to be consulted on the matter in question or matters of that kind;

           (b) anyone engaged in caring for that person or interested in that person's welfare;

           (c) any person on whom authority is conferred under a lasting power of attorney granted by that person and applicable to the matter in question; and

           (d) any delegate appointed by the Court under Part 4."

32.     In this case in respect of Article 6(2), there is no likelihood of D regaining capacity. 

33.     We accept that her past expressed wishes were that E continue to reside in the property, which has been her home for most of her life. 

34.     The advocate for E provided a summary of factors weighing in favour and against the proposal that E continue to live in the property rent free which were, it was argued, relevant to the determination of the best interests of D, although not determinative of the same: 

In favour	Against
The continuation of the rent-free living arrangement for E and her family is consistent with D's past wishes and feelings and beliefs and values. This is evidenced by the fact that this was a long-standing arrangement put in place by D herself and her late husband, which has continued for over 10 years, during which time she never asked E to pay any rent and also made significant alterations to the property in order that E could live there.	D will not receive any rental income or capital from any potential sale or letting of the property.
D has more than enough funds in her savings to cover her current expenses and liabilities and her savings will begin to accumulate again once she is in receipt of the LTC benefit, from the end of June 2024. The continuation of the existing rent-free living arrangement will therefore have no discernible impact on D's ability to meet her conceivable needs from her remaining funds and future income. E is the sole heir under her mother's will of immovable estate and will eventually inherit the property or the balance of the proceeds of sale.	The property is not currently maintained in the most optimum condition. The sorting and clearing process is a significant task which has begun.
There is no other feasible plan at the moment in terms of immediately bringing the property up to a rentable standard, as E does not have funds currently.  This process will be undertaken gradually over the coming months by E and her partner.	Nonetheless the property could be sold now and E could look for other accommodation.

35.     In some respects, the 2016 Law mirrors some provisions of the Mental Capacity Act 2015 and accordingly English case law may therefore sometimes be of assistance. 

36.     In PBC v JMA & Ors [2018] EWCOP 19 the English High Court considered an application by PBC, the sole attorney for property and affairs of his mother ("JMA"), to make gifts from her estate.  The purpose of the gifts was to achieve a reduction in inheritance tax on behalf of the beneficiaries under the will.

37.     It was held that even though there was no clear benefit to JMA and her quality of life if the proposed order was granted (JMA unfortunately no longer had the mental capacity to give away significant gifts at that time) it was important for the Court of Protection to consider what would have been in JMA's best interests if she did still have mental capacity, and the actions she would likely have taken herself should she have been able to do so.

38.     The Court also considered whether the gift would affect JMA's current quality of life.  However, JMA's estate was sizable enough that the making of the gifts would not result in any hardship for her.  Furthermore, the making of the proposed gifts was consistent with her actions when she had capacity.  The court undertook a balancing exercise and ruled that the factors in favour of making the proposed gifts outweighed the factors against, and PBC's request to make the gifts was therefore approved by the Court. 

39.     Generally, it will be in the best interests of a person lacking capacity who has moved into a care home where the costs are likely to be significant, and their former home now lies empty for that property to be sold or let out to maximise the assets of the person without capacity.  This will be the presumption in most cases that come before this Court.  But different considerations are bound to arise in circumstances such as this, where a family member has occupied the principal asset of P for many years without payment of rent and there are assets still available to P which do not make it necessary to realise the value of the property in the near term. 

40.     The key consideration in determining D's best interests are that she remain at [Redacted] Care Home with her fees paid in full.  That is essential to her welfare.  Nonetheless, currently it is consistent with those interests and, it appears, with her long term wishes, that her daughter (E) and her granddaughter continue to reside rent free in the property.  However, E's continued rent free occupation of the property must be immediately reviewed if, contrary to current expectations, D's savings are substantially depleted below the projected sum of £28,000 in June 2024, and we directed at the end of the hearing that E must bring the matter back to Court if her mother's savings fall below the sum of £10,000 and, in any event, we directed a review in twelve months time in order to ensure that matters had progressed in accordance with our expectations.

Conflict of interest

41.     We now turn to consider, albeit briefly, the question of conflict of interest.

42.     As this case demonstrates, it will not be uncommon for there to be a conflict, or at least a prima facie conflict, between the interests of P and the interests of the proposed or actual delegate where they are a member of P's family.  The question will often be how to manage these conflicts as opposed to holding that any such conflict disables a delegate from acting.

43.     General remarks about the appointment of family members as delegates or, the English equivalent, deputies, were made by Hedley J in the English High Court case of P [2010] EWHC 1592 (Fam), where the judge said:

"7. The court has before it an application by the parents and sister of DP to be appointed his deputies in respect of all welfare and financial matters, in other words, to be appointed in such a way as to be able to make all necessary decisions indefinitely into the future in relation to those matters which he himself cannot decide. It is accepted that, whether it be the court or whether it be a deputy, any decision made on behalf of a person lacking capacity, must be made in his best interests and the statute sets out in Section 4 the principles that must govern the exercise of a judgment in relation to best interests. To that one must add Section 16(4) of the Act which provides that:

"When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that -

(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and

(b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances."

8. A provisional reading of those principles might be thought to sit rather uncomfortably with the concept of appointing deputies at all. Since the principle of appointing deputies is fundamental to this part of the Act, it must be appreciated that Section 16(4) has to be read in the context of the fact that, ordinarily, the court will appoint deputies where it feels confident that it can. It is perhaps important to take one step further back even than that, and for the court to remind itself that in a society structured as is ours, it is not the State, whether through the agency of an authority or the court, which is primarily responsible for individuals who are subjects or citizens of the State. It is for those who naturally have their care and wellbeing at heart, that is to say, members of the family, where they are willing and able to do so, to take first place in the care and upbringing, not only of children, but of those whose needs, because of disability, extend far into adulthood. It seems to me at least that the Act ought to be read subject to that overriding policy aim.

9. Therefore, the court ought to start from the position that, where family members offer themselves as deputies, then, in the absence of family dispute or other evidence that raises queries as to their willingness or capacity to carry out those functions, the court ought to approach such an application with considerable openness and sympathy."

44.     The wording of section 16 is to some extent reflected in Article 24, particularly Article 24(3) which requires the Court to ensure that the scope and duration of the appointment of the delegate are "no greater than reasonably necessary".

45.     Nonetheless, the presumption that Hedley J referred to, namely that the Court should approach applications from family members to take the oath as delegate should be met with sympathy, is certainly the approach of the Jersey Courts.  A proposed delegate from the family will be familiar to P and it is both in the public interest and usually in the financial interests of P for a member of the family to accept the appointment as delegate as opposed to a Jersey lawyer. 

46.     In Re J [2022] JRC 008, the Bailiff, giving the judgment of the Royal Court, considered a contested application for delegate and referred to the relevant provisions in the 2016 Law and also the decision of the English Courts in Re BM [2014] EWCOP B20 as follows:

""46. No one has an automatic right to be appointed as deputy. The Court of Protection has a discretion as to whom it appoints and, as I have said before in other judgments, traditionally the court has preferred to appoint a relative or friend as deputy (if it is satisfied that it is in P's best interests to do so), rather than appoint a complete stranger.

47. This is because a relative or friend is usually familiar with P"'s affairs and aware of their wishes and feelings. Someone with a close personal knowledge of P is also likely to be in a better position to meet the obligation of a deputy to consult with P, and to permit and encourage them to participate, or to improve their ability to participate, as fully as possible in any act or decision affecting them. And, because professionals charge for their services, the appointment of a relative or friend is preferred for reasons of economy.

48. .... These include situations where:....

(c) there is real a conflict of interests..."

47.     However, such conflicts are not uncommon.  In GGW and East Sussex County Council Re JW [2015] EWCOP 82, Senior Judge Lush dealt with an application where a family member (the son of the person who had lost capacity) wanted to be appointed joint deputy with the existing deputy, the local authority, but the local authority was unwilling to act jointly with him.  The son then revised his application so as to ask the Court to remove the Council as deputy and appoint him in its place.  This the Court ultimately did - in the face of objections from the Council, notwithstanding the suggestion that he had a conflict of interest - the son was a builder who wished to carry out work to a property owned by his mother, the person who had lost capacity.  At paragraph 31, Senior Judge Lush said this:

"31. Conflicts of interest are ubiquitous in any mental capacity jurisdiction and it would be unrealistic, if not impossible, to eradicate them entirely. I am not sure that the CRPD [the United Nations Convention on the Rights of Persons with Disabilities] expects us to do that, anyway. It simply requires States Parties to "ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law."

48.     Ultimately the Court granted the son's application and approved his appointment but made it subject to various conditions which were described as "appropriate and effective safeguards to prevent abuse".

49.     Our attention was drawn to the Code of Practice issued under the 2016 Law:

"A fiduciary duty means delegates must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. For example, delegates should not buy property that they are selling for the person they have been appointed to represent. They should also not accept a third party commission in any transactions. Delegates must not allow anything else to influence their duties. They cannot use their position for any personal benefit, whether or not it is at the person's expense.

In many cases, the delegate will be a family member. In rare situations, this could lead to potential conflicts of interests. When making decisions, delegates should follow the Law's core principles and apply the best interests principles and not allow their own personal interests to influence the decision.

Property and affairs delegates should usually keep the person's money and property separate from their own or anyone else's. This is to avoid any possibility of mistakes or confusion in handling the person's affairs. Sometimes there may be good reason not to do so (for example, where a couple have had a joint account for many years)."

50.     So, in most (although not all) circumstances conflicts of interest which arise, such as the one in this case, can be managed and we have done so in this case by making the directions that we have.  Where it is quite impossible for such conflicts to be managed, then a delegate independent of the family, usually a lawyer, will need to be appointed.  However, the Court should be slow to make such an appointment and, as shown by the decision of Senior Judge Lush in DG David and Barry v Peter [2014] EWCOP 31, the Court will do its best to find a family member who can act, even in the case of long-standing hostility between family members - in that case three siblings, one of whom consistently disagreed with the other two.  It is only when the hostility prevents day-to-day administration of P's property and financial affairs should an independent delegate be considered (see paragraphs 22 to 24 of the judgment).

Costs

51.     After the hearing, the Court's attention was drawn to the Capacity and Self-Determination (Miscellaneous Provisions and Prescribed Fees and Forms) (Jersey) Order 2018 (the "Order"). Among other things, the Order prescribes the extent of the fees and expenses that a delegate other than a professional delegate, which includes E, may recover.  The relevant provisions are paragraph 8(4), 8(5) and 8(6).

52.     Prima facie, a delegate who is not a professional delegate is entitled to repayment out of P's estate for any expenses properly incurred by the delegate in employing an advocate to do, in connection with the administration of P's property and affairs, any work normally requiring professional assistance.  We accept for these purposes, although the point was not argued, that this application was a matter connected with the administration of D's property and affairs. 

53.     Article 8(5) of the Order provides that fees and expenses must be "reasonable and proportionate" having regard in particular to D's best interests, the total value of her assets, the amount of work carried out (whether calculated by number of hours, or in any other manner) and the nature and scope of the task comprising such work and, where relevant, the limits prescribed by Article 9.

54.     With regard to the right ability to recoup E's expenses from D's Estate, it does not appear that the scale of fees under Article 9 is relevant as that appears to relate to the scale of fees of delegates other than professional delegates, but does not extend to the costs of employing an advocate although, again this was not the subject of argument.  The delegate in this case did not provide in advance of the hearing a "plan" as required by Article 8(6) for consideration by the Judicial Greffe.  It may be that there were good reasons for this upon which we cannot speculate. 

55.     We now know that the fees were substantial for what was a hearing that lasted less than two hours.  Advocate Lawrence informed us at the hearing that his costs were no more than £5,000.  However, subsequently we received an email from him saying that his fees were £8,000 plus GST and subsequent to that, a further email which indicated that the time spent on this matter by his firm exceeded £25,000.  This is a very high figure.  We take notice of the fact that the annual legal costs of administration of a small non-complex set of assets where an advocate has been appointed delegate is generally between £2,000 and £5,000.  The Court receives figures in this bracket on a weekly basis.  E did say through her counsel that she had assets in the form of motor vehicles, valued at £23,000, that she was intending to sell in order to cover D's care fees if required.  In view of the decision made by the Court, it is no longer necessary for her to take these steps.  It may be that she will wish to contribute to her advocate's fees out of these assets, but that ultimately is a matter for her.  We note that she continues to pay all bills in respect to the property which is understandable as she and her family are the sole occupiers and the sole beneficiaries of living there.  Having regard to the circumstances of this case and the factors that the Court is to have regard to, including D's best interests, the total value of her assets, and the work that appears to have been carried out by Advocate Lawrence, we were initially of the view that it is not appropriate for E to have any of these costs out of her Mother's assets.

56.     The Court gave the indication which it did on 1 March 2024, as referred to in paragraph 11 above, to prevent this sort of situation occurring.  However, notwithstanding the indication which the Court gave, we have taken the view that it was not unreasonable for the delegate in this case to take advice bearing in mind the issues at stake and although her principal concern was her own position and not her Mother's, we have found that her Mother's wishes would have extended to wanting E and her daughter to remain in the home.  In those circumstances we have been persuaded that E may have fees from D's assets to the extent that they are reasonable and proportionate and allow the sum of £5,000 (including GST) for this purpose.

Authorities

Capacity and Self-Determination (Jersey) Law 2016. 

Residential Tenancy (Jersey) Law 2011. 

In the matter of P [2019] JRC 002. 

NHS Trust v MB and another [2006] EWHC 507 (Fam). 

Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67. 

In the matter of P [2009] EWHC 163 (Ch).  

Morgan J in Re G (TJ) [2010] EWHC 3005 (COP). 

PBC v JMA & Ors[2018] EWCOP 19. 

P [2010] EWHC 1592 (Fam). 

Re J (Capacity) [2022] JRC 008.  

Re BM [2014] EWCOP B20. 

GGW and East Sussex County Council Re JW [2015] EWCOP 82. 

DG David and Barry v Peter [2014] EWCOP 31.