Jersey Unreported Judgments

[2010]JRC151

royal court

(Samedi Division)

18^th August 2010

Before     :

M. C. St. J. Birt, Bailiff, and Jurats de Veulle, Tibbo, King, Le Cornu, Liddiard, Kerley, Marett-Crosby and Nicolle.

 

IN THE MATTER OF THE CURATORSHIP OF MR L AND MR B

Advocate H. Sharp QC., Solicitor General for the Attorney General.

The prospective curators in person.

judgment

the bailiff:

1.        In the case of Re Curatorship Mrs B [2007] JRC 232, the Inferior Number held that there was no absolute prohibition on the appointment of a curator who is non-resident in Jersey under Article 43 of the Mental Health (Jersey) Law 1969 ("the Law") but that it would only make such an appointment in exceptional circumstances. 

2.        The Registrar of Probate has expressed some concern as to the Court's ability to enforce the obligations of a curator who is a non-resident of the Island.  Furthermore, there have recently come before the Inferior Number two new applications for the appointment of a non-resident curator; in each case it is the son of the interdict.  The matter has been referred to the Superior Number in order that the correctness or otherwise of the decision in Mrs B can be considered and any further guidance thought necessary can be given. 

3.        The Court has been much assisted by the Solicitor General who has carried out research as to the position in England and Wales, Scotland, Canada and Guernsey.  We have also been assisted by submissions from the Registrar of Probate and the two proposed curators. 

4.        In broad terms, the Court does not dissent from the guidance set out in Mrs B and accordingly we would propose to be fairly brief in our reasons. 

5.        The potential dangers of appointing a non-resident curator were well summarised by the Court at paragraphs 6 and 7 of its judgment in Mrs B:-

"6. In considering the exercise of the Court's power to appoint a curator, it is the interests of the interdict that are paramount.  The imposition of a curatorship is a drastic order removing as it does a person's control over his or her assets.  It seems to us objectionable as a matter of principle for the Court, without very good cause, to remove control of the interdict's assets by imposing a curatorship and then passing control of those assets to someone outside the jurisdiction and therefore beyond the control of the Court.  The assets of the interdict must remain available to be applied for the benefit of the interdict and the only way the Court can ensure that the curator complies with his or her duties and obligations under the Law is through the exercise of its jurisdiction over the person of the curator.  If the curator is outside the jurisdiction of the Court, then the Court has no means of enforcing those duties and obligations. 

7. We accept that there is nothing (other than possible safeguards in Article 43(17) of the Law), to prevent a Jersey resident curator from transferring the moveable property of the interdict out of the Island but that curator remains subject to the jurisdiction of the court whose orders can be enforced against his or her person.  If a non-resident curator were to do so then both the moveable assets and their control will have been removed from the jurisdiction.  An interdict who recovers his or her mental capacity and is re-instated or in the event of death, his or her estate or a replacement curator would have very serious grounds for complaint if it was found that this was the position.  In extremis, there may be nothing in the Island to fund recovery proceedings abroad. ..."

6.        To this we would add the concerns of the Registrar that, even in the case of resident curators, her Department often has to spend time chasing curators to comply with their obligations in terms of filing accounts etc.  In the case of a non-resident curator, there would be greater difficulty in enforcing these measures. 

7.        As against that, again as was said in Mrs B, assuming the necessary competence and skill, a loving child can bring to a curatorship a level of care and attention that no professional agent can replicate. 

8.        In England and Wales, the Court of Protection has power to appoint deputies pursuant to the Mental Capacity Act 2005.  It is deputies who manage the affairs of those who lack the capacity to do so themselves.  The Act does not preclude the Court of Protection from appointing a non-resident deputy and the Solicitor General has established that they are quite frequently appointed.  However, the Court of Protection is given power under the Act to require such security from a deputy as it thinks fit for the due discharge of its functions.  This is regularly applied.  The usual means of providing such security is by means of a security bond provided by an authorised insurance company.  There is in fact a scheme which enables such bonds to be provided quickly and easily by a particular insurance company.  The bond operates as a commercial "first demand" bond and is to cover any loss caused by the actions of the deputy.  The terms upon which the insurance company will pay up under the bond are stated in the bond but they usually simply require certification by the court that the conditions for payment have arisen.  The money is paid over almost immediately upon a loss being discovered and without argument.  The scheme in England provides for payment of forfeited bonds within two weeks.  Any argument takes place between the bond provider and any party from whom it may have a right of indemnity, such as the defaulting deputy.  The expense of taking action and the risk of non-recoupment are borne by the bond provider. 

9.        According to the information available, the annual premiums are as follows:-

(i)        £25 for a £5000 bond;

(ii)       £40 for a £40,000 bond;

(iii)      £375 for a £150,000 bond;

(iv)      £500 for a £250,000 bond;

(v)       £1000 for a £500,000 bond;

(vi)      £2000 for a £1 million bond. 

The annual premium is paid out of the interdict's estate on the basis that it is a payment made for his benefit.  We were also informed that £1 million is the maximum bond which can be obtained for a lay (i.e. non-professional) deputy. 

10.      The law in Scotland is to similar effect although there the security is required to be provided.  In practice the same scheme is apparently operated as in England and Wales. 

11.      In Canada, a non-resident guardian must give security; otherwise he or she will not be appointed.  The guardian must also sign an agreement that he or she will submit to the jurisdiction of the relevant court. 

12.      The Solicitor General was advised that, in Guernsey, there has not yet been any consideration of whether a non-resident individual may be appointed a curateur. 

13.      The Solicitor General has made enquiries of an insurance broker who gave evidence before the Court of Protection in relation to the English scheme in the case of Re H (15th October 2009), to which we were referred.  That broker has advised that, although it would not be possible for bonds to be provided for Jersey non-resident curators as part of the scheme which applies in England and Wales, it should be possible on a case by case basis for a curator to approach the broker for initial acceptance and a premium quotation.  As an indication, the broker suggested that the premium required for a bond of £1 million would be approximately £2500 per annum. 

Conclusions

14.      Having reviewed all the matters put before us, we have concluded that the approach in Mrs B is correct.  The Court's decision to impose a curatorship results in the interdict's assets being removed from his or her control.  It is therefore vital that appropriate safeguards are in place to ensure that those assets are protected and properly used for the interdict's benefit.  Ordinarily, a key part of that control is the supervisory function and jurisdiction of this Court.  The risk is that an overseas curator could transfer the assets outside the Island and, in that event, both the assets and the curator would be entirely outside the supervision and control of this Court.  Moreover, recovery of assets transferred overseas might take considerable time and expense.  In the interim, the interdict may have an immediate and ongoing need for funds to defray medical and/or residential expenses. 

15.      It follows that, when determining whether to appoint a non-resident curator, the Court must balance the benefit of such an appointment (perhaps because it involves the appointment of a loving child) against the risks involved in the control of assets passing out of the jurisdiction.  We agree with the Court in Mrs B that the inherent risks associated with the appointment of a non-resident curator are likely to mean that the Court will require the existence of exceptional circumstances before it agrees that such a course is in the interdict's best interests. 

16.      The Court also considers that, in order to protect against the risks associated with the appointment of a non-resident curator, any such appointment should be accompanied by the provision of a security bond as described earlier.  It may be that in exceptional cases e.g. a very small estate, this may not be necessary or appropriate but we find it hard to envisage many circumstances where it would not be appropriate to require a bond to be provided by a non-resident curator.  We note that in Canada it is mandatory and we understand that a bond is invariably required in England and Wales.  As to the level of bond, we have been referred to the case of Re H where emphasis was placed upon the likely annual expenditure of the interdict.  We think that may lead to practical difficulties and could also lead to an under provision of security in the case of larger estates.  We have not heard detailed argument on this aspect of the matter but we are inclined to think that a suitable starting point for the consideration of a court appointing a non-resident curator should be a bond equal to 70% of the liquid assets up to a maximum of a £1 million bond.  By liquid assets, we mean assets such as cash, securities and tangible moveables.  We would regard immoveable property, whether in Jersey or elsewhere as an illiquid asset. 

17.      A non-resident curator should also undertake to submit to the jurisdiction of the Royal Court in all matters concerning the curatorship or any claim against the curator. 

18.      We were informed by the Solicitor General and the Registrar of the enquiries which they make in order to assess the suitability of lay curators.  We believe that special care needs to be taken over such enquiries in the case of a non-resident curator and the results of the enquiry should be explained to the Court in each case where it is being suggested that a non-resident curator should be appointed.  In particular, the status, experience and record of the applicant curator will be relevant as well as the nature of that person's relationship to the interdict. 

19.      In Mrs B, the Court suggested that a condition of the appointment should be that the interdict's tangible moveable property should remain within the Island, any bank accounts should be maintained with banks in the Island, and any investments should be made through a Jersey nominee or intermediary.  It is hard to be over prescriptive in relation to such matters but we think that any court considering the appointment of a non-resident curator should consider very carefully the imposition of a condition which ensures that the maximum amount of property remains within the Island and therefore subject to the supervisory control of the Court. 

20.      Having set out these general guidelines to be applied when considering the appointment of non-resident curators, we adjourned the two applications before us, so that information could be obtained as to the provision of a security bond in each case and about the enquiries which have been undertaken concerning each proposed curator. 

Authorities

Re Curatorship Mrs B [2007] JRC 232.

Mental Health (Jersey) Law 1969.

Mental Capacity Act 2005.

Re H (15th October 2009).