BCR Law Partner Jean-Marie Renouf, recently acted for a Jersey property owner and her two brothers who wished to rely upon an English Enduring Power of Attorney in order to relinquish their elderly mother’s dower rights over the property so as to permit its sale.
In a judgment dated 23rd April, 2018 the Royal Court considered for the first time an application for recognition of a foreign enduring power of attorney (“EPA”).
EPAs, such as can be given under English law, permit a person to authorise another to act on their behalf to carry out certain acts or transactions, and such authority will survive (or ‘endure’) the loss of capacity of the donor of the authority, for example through mental illness. The position in Jersey is different however, being generally governed by the Power of Attorney (Jersey) Law 2005, which includes a provision that a power of attorney is lost upon the loss of capacity of the donor i.e. EPAs are not permitted by Jersey law.
Against this backdrop, a Jersey resident sought to sell a Jersey house which had been inherited from her late father. However, her elderly mother retained a customary right of dower over the property, which meant that it could not be sold without this being abandoned. The further difficulty was that the elderly mother had by then lost her capacity, and whist she had previously (whilst still having capacity) given an English EPA to her children, could this be relied upon for use in Jersey?
An application was made to the Court for recognition of the EPA and the ability of the children (as attorneys) to waive their mother’s right to dower, thereby permitting the sale to proceed.
Advocate Renouf argued that in fact the Jersey statute (with the provision causing the loss of any power in the event of a loss of capacity) was of no application in this case; the EPA was valid under English law, and had been appropriately registered in the English Court of Protection in light of the mother’s loss of capacity. The attorneys were accordingly governed by the English court, and the controls in place through those means would safeguard against inappropriate use. Moreover, the Jersey alternative route of a curatorship was inappropriate as it would create a significant burden upon a curator, such as to file inventories and accounts, when all that was intended was a single transaction.
Advocate Renouf further submitted that the Court should approach the matter as it does those of foreign insolvency professionals who come to Jersey in the course of international bankruptcies; their particular office (such as ‘receiver’) may not be technically known to Jersey law, but by way of reciprocation of assistance with the British Courts, the Jersey Court is generally willing to recognise and empower such individuals to carry out their functions in the Island.
The Court, having noted one previous occasion when the registration of an English EPA in fact appears to have been ordered (albeit without full consideration) agreed that, in the circumstances, it would be appropriate to recognise the attorneys pursuant to the EPA and to permit them to waive their mother’s rights of dower and allow the sale to proceed.
The Court further noted the impending introduction of the new Capacity and Self-Determination (Jersey) Law 2016, which would modernise the system of powers of attorney and complications of capacity in the near future.