Guardianship/Power of Attorney

Do you need help with a Power of Attorney or Guardianship?

Here’s a brief description of each to explain the difference and to talk you through the steps to be taken.

Guardianship (The Curatelle Rules, 1989)

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 patient’s Doctor to confirm in writing their opinion that the patient is unable to manage their own 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). Should the Guardian and/or the family council not be the closest relative of the patient, it will need to be explained as to why the closest relatives are not applying. 
• 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 all called upon to confirm they approve the nomination of the Person applying to be Guardian. The Guardian then takes the Oath.

Powers of Attorney (The Powers of Attorney and Affidavits (Bailiwick of Guernsey) Law 1995)

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 himself.

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 his house to an attorney as the donor is to be unable to attend court.

• A Specific Power of Attorney states one or more specific functions which can be carried out on the donor’s behalf.
• A General Power of Attorney gives, as it states, general powers to carry out any functions on the donor’s behalf.
• 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 himself).
• Once a donor becomes mentally incapable the power of attorney will lapse under Guernsey Law.
• A Power of Attorney can be revoked by the donor at any time.
• A Power of Attorney must be sworn in accordance with the terms of the Power 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. This does involve an application to the Royal Court of Guernsey.
• The grant of any Power of Attorney should only be considered after receiving appropriate legal advice.

NOTE: The corresponding laws in Jersey and the UK differ to the Bailiwick of Guernsey laws.

This information has been verified by an advocate of the Royal Court of Guernsey – October 2015