Corporate & Commercial

Ferbrache & Farrell LLP’s corporate department offers full service corporate, banking and commercial cover and is able to advise on all aspects of Guernsey corporate and commercial law, including banking and finance, regulatory, investment funds, asset management and listings on The International Stock Exchange (TISE).

Latest Insight
22 March 2024
News
In April 2022, the Capacity (Bailiwick of Guernsey) Law, 2020 (the “Law”) came into force, enabling a person (“Donor”)  to appoint an Attorney (or Attorneys)…
Dispute Resolution

The dispute resolution department at Ferbrache & Farrell LLP has vast experience of local and international litigation and dispute resolution generally, gained from acting in complex local and international high-value disputes, both in Guernsey and throughout the world.

Latest Insight
22 March 2024
News
In April 2022, the Capacity (Bailiwick of Guernsey) Law, 2020 (the “Law”) came into force, enabling a person (“Donor”)  to appoint an Attorney (or Attorneys)…
Property

The Guernsey property department is dedicated to providing tailored solutions that meet and exceed clients’ expectations. In addition, the property department provides support to colleagues in the corporate and dispute resolution departments on real estate-related technical points of law.

Latest Insight
22 March 2024
News
In April 2022, the Capacity (Bailiwick of Guernsey) Law, 2020 (the “Law”) came into force, enabling a person (“Donor”)  to appoint an Attorney (or Attorneys)…
UK Real Estate

We are delighted to help in relation to providing legal advice for real estate in England and Wales. We listen. We learn what your needs are. We proactively respond. Whether it’s personal or commercial property, we always provide sound and pragmatic advice, adding value to the transaction.

Latest Insight
10 July 2024
News
In June 2024, The Law Society released the 5th edition of the TA6 Property Information Form. This updated form aligns with the National Trading Standards…
Private Client

Our services for private client matters include the drafting of realty and personalty wills, obtaining Grants of Probate, acting as professional executors and assisting foreign lawyers who have requirements in this jurisdiction.

Latest Insight
22 March 2024
News
In April 2022, the Capacity (Bailiwick of Guernsey) Law, 2020 (the “Law”) came into force, enabling a person (“Donor”)  to appoint an Attorney (or Attorneys)…

Islanders in the Bailiwick of Guernsey will soon be able to plan for a time when their mental capacity may be impaired.

The current legal position has not been refreshed for many years and does not allow for someone to decide how their affairs should be conducted at a time when they are no longer able to make decisions. This has proved to be onerous on loved ones and out of step with the UK, where legislation protecting vulnerable members of society in decision-making on their behalf has been in place for more than a decade.

The Capacity (Bailiwick of Guernsey) Law, 2020

The proposed new legal framework has been before the States on a number of occasions and has received widespread support.

Unforeseen capacity issues can develop from dementia, mental health problems or physical illness, including a stroke, serious infection or unconsciousness. There is currently no real scrutiny or an appeal system for a patient.

The law will set out a statutory test to decide whether a person has the mental capacity to make a specific decision. Once someone has been assessed to lack capacity it will then establish the ‘best interests principle’ in relation to their decision-making.

Lasting Power of Attorney

Under the proposed new law, it is intended that Lasting Powers of Attorney (“LPAs”) will be introduced for health and welfare, and property and financial affairs. This means that someone (let’s call them a ‘donor’) can establish an LPA at a time when they have mental capacity and can choose how they want their affairs to be handled should a time come when they are no longer able to make a decision for themselves. This removes the need for the appointment of a guardian or for the guardian to ‘guess’ what the donor’s wishes would have been in a given situation after they had lost capacity.

Types of Lasting Powers of Attorney

Health and welfare

A health and welfare LPA would set out the donor’s decisions about things like daily routine (e.g. what to eat and what to wear), medical care, moving into a care home and life-sustaining treatment. This type of LPA would not have any practical effect until such time as the person loses capacity to make their own decisions.

Property and financial affairs   

A property and financial affairs LPA would set out the donor’s decisions about money and property, such as paying bills, collecting benefits and selling assets such as the home. This type of LPA could potentially be used while the person still has capacity, if permission is given in the Lasting Power of Attorney for that to happen.

Planning for future care and treatment

The proposed law makes significant strides in giving people a say in relation to future medical treatment and care.

An Advanced Care Plan (an “ACP”) allows an individual to express their future wishes regarding their care, in advance of a time when they may lose the mental capacity to make their own decision.

It should be noted that the ACP is an expression of wishes, not a directive. For example, it can’t be used to request admission to a specific care home or make the States provide care of a certain type or standard.

Significantly, the proposed law provides the ability for people to decide to refuse future treatment. If a valid Advanced Decision to Refuse Treatment (“ADRT”) has been made, any medical professional treating the person cannot provide any treatment specified in the ADRT.

Protective Authorisation Scheme

A Protective Authorisation Scheme is intended to be introduced to protect the rights of people without capacity who are deprived of their liberty. The aim is to ensure that restrictions on their freedom of movement and autonomy comply with Article 5 of the European Convention on Human Rights. Article 5 protects individuals from unlawful deprivation of liberty but also recognises that sometimes it is necessary to detain a person of “unsound mind”. The role of Capacity Professional will be introduced to oversee the authorisation process.

Independent Capacity Representatives

If someone has no family of friends eligible to represent them, this will not mean they are left unprotected by the proposed new legislation.

The Capacity (Bailiwick of Guernsey) Law, 2020 is likely to see the introduction of independent capacity representatives to provide advocacy support to those who lack capacity and who do not have family or friends who can provide support.

Conclusion

This substantial piece of legislation has been long-awaited in Guernsey and is an important step in protecting vulnerable islanders and their families. Get in touch with us to find out how your future rights can be protected under the proposed new law.

Email Alastair Hargreaves at alastair.hargreaves@ferbrachefarrell.com or telephone 741300.