Guardianship and Powers of Attorney - Guernsey
If a person has dementia, it is important that they organise their financial and legal affairs while they are still able to do so. This ensures that in the future, their affairs will be set up in a way that they have chosen. The person may want a friend or family member to help them with this.
This factsheet explains the differences under Guernsey law between Guardianship and Powers of Attorney.
The corresponding laws in Jersey and the UK differ to the Bailiwick of Guernsey laws. Anyone needing advice or further assistance before speaking to an advocate, may contact the Citizen's Advice Bureau or your social worker (see 'Useful organisations', at the end of this sheet, for details).
Guardianship (The Curatelle Rules 1989)
Guardianship allows control over a person's affairs when it is deemed that the person is no longer capable of managing them.
The first stage is to request the person's doctor to confirm in writing that in his opinion the patient is unable to manage their affairs.
The family must then agree that one (or two) of them should be nominated as proposed Guardian. The others form a Family Council (normally three members).
Once the family have all agreed, they should see an advocate who will explain the responsibilities and other information that they may need as set out in a Guardianship application form.
The doctor will then need to swear an Affidavit in front of a Notary Public.
The Guardian and the Family Council must then attend court and the Family Council is called upon to confirm they approve the nomination of the person applying to be Guardian. The Guardian then takes the oath.
Should the Guardian and/or the Family Council not be the closest relatives of the person with dementia, it will need to be clarified as to why the closest relative(s) are not applying.
Powers of Attorney: The Powers of Attorney and Affidavits (Bailiwick of Guernsey) Law 1995
Power of Attorney allows an individual with mental capacity (the 'donor') to confer authority/power on another, or group of others, (the 'attorney') to do, on behalf of the donor, anything which the donor could lawfully do themselves.
A Power of Attorney may be used, for example, by a donor who is out of the island for some time, to grant the power to sell their house to an attorney, as the donor will be unable to attend court.
A Special Power of Attorney states one or more specific functions which can be carried out on the donor's behalf. These are the most common types of Powers of Attorney.
A General Power of Attorney gives, as it suggests, general powers to carry out any functions on the donor's behalf. The grant of a General Power of Attorney should only be considered after receiving appropriate legal advice.
A donor must have the mental capacity to be able to confer the power, or powers, on the attorney. (This is unlike the situation regarding Guardianship where a guardian is appointed to manage the affairs of an individual who is mentally incapable of doing so themselves).
Once a donor becomes mentally incapable the Power of Attorney will lapse under Guernsey law.
A Power of Attorney can be revoked at any time.
A Power of Attorney must be sworn in accordance with the terms of the Powers of Attorney and Affidavits (Bailiwick of Guernsey) Law 1995.
Enduring Powers of Attorney cannot currently be created under Guernsey law however they may be recognised by the Royal Court of Guernsey if certain conditions are met.
St Andrew GY6 8YP
T 01481 213367 (office)
01481 233700 (helpline)
Citizens Advice Bureau (CAB)
St Sampson GY2 4QS
T 01481 242266
F 01481 200444
Social Work Department
La Neuve Rue
Castel GY5 7NJ
T 01481 725241
Last updated October 2014