The amount of assistance that a patient requires will vary. Some people are lucky enough to reach very advanced years before they need any help, or the very lucky may never need any help at all. Others may need some assistance with, say, writing cheques or transferring money from one account to another.
In these relatively straightforward circumstances it may be adequate for the patient to make the helper a signatory to a bank account. If the patient’s affairs are slightly more complicated they could give the helper a Power of Attorney. A helper having been appointed as an Attorney under a Power of Attorney would be able to do anything that the patient could do for themselves.
However, for some there comes a time when a helper is no longer able to provide the assistance required by being a signatory on a bank account or as an Attorney under a Power of Attorney. For example, a patient who is unable to make decisions for themselves cannot give instructions to a helper to use a Power of Attorney.
In such a case it may be necessary to apply to the Royal Court for a Guardian to be appointed. The Guardian is often a close relative, but could be a friend or professional person. A patient can have more than one Guardian. Where two or more Guardians are appointed it is common to see power being given to the survivor of them to continue to act alone. This is useful where one of the Guardians predeceases the patient as it avoids the need to make a new application to the Court.
In most cases an application for a Guardian to be appointed is a straightforward process. First, the patient's doctor will be asked to swear an affidavit stating that the patient is incapable of having day-to-day control of his affairs. The doctor’s affidavit is a standard document used in all such applications.
A Guardian will be supported by three members of what is called a “family council”. The family council is normally made up of friends and relatives, but can be anybody who is prepared to take an interest in the patient and the guardianship.
Once the doctor’s affidavit has been sworn the Court application is prepared. The Court application gives details of the applicant (the person asking to be appointed Guardian), details of the patient, the names of the family council and brief details of the patient’s assets.
Sometimes the Court is asked to appoint a Guardian who is not resident in Guernsey. It has become common practice for a non-resident Guardian to be appointed jointly with a person who is resident in Guernsey. The Court has, however, made it clear that in certain circumstances it would be prepared to appoint a non-resident Guardian to act solely.
The application is made to the Court on a Thursday morning after Conveyancing Court. The Guardian and the family council are required to be present at the time the application is made. In some cases members of the family council can be represented by an attorney if they are not present in Guernsey on the day the application is made.
If the Court is satisfied that it is in the best interests of the patient to appoint a Guardian, and that the applicant is the best person to be that Guardian, it will grant the application and the applicant will be asked to swear an oath by which they promise to act in the best interests of the patient.
Under English law you can prepare what is called a “lasting power of attorney” which becomes effective when the person giving the power reaches the stage where they are unable to make decisions for themselves. Guernsey is considering bringing in similar provisions, but does not have such a procedure yet.
It should be noted that the appointment of a Guardian does not give the Guardian power to sell the patient’s realty (houses and land). For the Guardian to do so it is necessary to make a further application to Court seeking permission to sell the patient’s realty. Applications to be appointed Guardian and applications seeking the Court’s permission to sell realty are often made on the same day.
Applications for ‘permission to sell’ are supported by a valuation prepared by someone who is experienced in valuing property in Guernsey. That may be an experienced estate agent or a surveyor, who will be expected to attend Court to give his opinion as to the value of the land in question.
Usually the Guardian will have put the property on the market and have accepted an offer before making an application to Court for permission to sell. That way the Court can be asked to agree the exact price at which it is intended to sell the land. Assuming that the Court is content with the evidence given by the valuer, and that the price which the property is to be sold is close to that value, it will approve the application, meaning the Guardian will be able to appear in the Conveyancing Court to consent to the sale of property on behalf of the patient.
Please contact Advocate Martyn Baudains for further advice on Guardianship applications.