News and Insights

The judgment in Representation of C (Capacity) [2021] JRC051 has clarified the Jersey court’s position in relation to the need for a medical report when dealing with an individual who lacks capacity to make decisions with regards to specific legal issues.

The application made by Advocate Christina Hall sought to appoint Advocate Zoe Blomfield as the financial affairs and property delegate for the client for the purposes of making decisions in relation to a légitime claim and a Trust. The unusual feature of the case was that there was no medical report to support the suggestion that the client lacked capacity. Instead the court relied on the evidence provided by Viberts’ staff together with historic evidence of the client’s previous medical health. The appointment only allows the delegate power for limited issues and for a limited time, which is also a new feature of the law.  This shows how the new capacity legislation is more flexible when it comes to capacity matters as well as emphasising the principle that the court should choose the least restrictive option possible for any person subject to a delegation.

The need for a delegation arose in this case when the client was unable to make important decisions relating to the conclusion of her case which she had issued in the Royal Court, which ultimately prevented her case from progressing and risked the case being struck out.

The decision made by the court was to appoint Advocate Blomfield as delegate without receiving a medical report as it was in the client’s best interests to do so. The court agreed that not only was it not practical to obtain a report in these circumstances, but that it was also not clear whether a medical practitioner with no previous knowledge of the client would be in a better position than Viberts’ staff, who have been acting for the client for some years, and felt able to assess her capacity in relation to her legal decisions. The court did however state that they would prefer to see a medical report when it was possible to obtain one and acknowledged the effort undertaken by Viberts to assist the client and consider all the alternatives before making the delegate application.

Advocate Blomfield commented “This was a very unusual case in difficult circumstances that were yet to be tested under the new legislation. I am very pleased that the court has accepted our arguments and given us the opportunity to seek to protect our client’s best interests.”

This is a welcome clarification to the interpretation of the Capacity and Self-Determination (Jersey) Law 2016 and its Code of Practice, and a positive result for Viberts, reflecting their significant effort to assist a vulnerable client with capacity issues.