Thursday, 21 April 2016

A Tutorial in Tutelles

A Tutorial in Tutelles

The Jersey Archive has an old parchment dating from January 6th 1683, with a seal, on which in faded handwriting are the words:

"Francois Amy, Jaque Alexandre, Philipe Touzel, Deny Le Tubelin, Jean Collas, Thomas Hormen, Jean Alixandre and Jean Houper appoint as the tuteur of the children of the late Barnabey Alexandre. Philipe Touzel is appointed."

This document is an early example of a tutelle. A tutelle is something singular to Jersey, with origins in the ancient Norman customary law of the Island of Jersey. It has developed over time as a means of protecting the interests and managing the affairs of children considered too young to do so for themselves.
It is a form of court-administered protectorship, in some ways like a trust, but part of the customary law of the Island. It was last updated in 1862 by the Loi (1862) Sur Les Tuteurs which imposed certain obligations on the tuteur with regard to preparation of accounts.

The tuteur took an oath of office ““to take the same care of the property and affairs of minors as a responsible head of the family would do for his or her own, on pain of liability for fraud (dol) and neglect of duty”.

When a child inherits money, property or some other assets and is under the age of 18 (it was originally 20), a tutelle was required. A Tutelle is formed when a minor inherits property or assets under a will or, in some instances, by way of compensation or gift.

Unlike a trust, all it requires is that seven persons, traditionally drawn from close family and friends, should be convened before the Royal Court. These seven persons, known as “Electeurs” then nominate from amongst their number, one person to act as the head of the Tutelle. This person is known as a “Tuteur” if male, or a “Tutrice” if female. The Tuteur must be resident in Jersey. Also only individuals are able to be appointed as tuteurs: corporate bodies may not be.

Traditionally, four electeurs are represented by the father’s side and three by the mother’s, but in practice they may well be friends of the family willing to take on the responsibility of being Electeurs, or even staff from the family’s lawyers.

I remember when I was made an “Electeurs” for a Tutelle. First, we had a briefing by the lawyer on the what a Tutelle did and the Court procedures, who made sure we were all properly attired - one Electeurs had turned up without a tie and had to borrow one. Lawyers are used to this and have spares available! Then it was over to the Royal Court where we sat on a bench and waited while a number of property transactions took place, as it was a Friday.

And suddenly, it was our turn, and we all were ushered (by the court usher) to the front of the Court, to stand in front of the Jurats. The membership of the Tutelle was briefly mentioned, and then we all took together our oath of office. Oaths in Jersey are unlike those in England and elsewhere. You simply stand silent, right hands raised, while the Bailiff administers the oath. You don't repeat or say anything - raising the hand while the oath is spoken constitutes assent. And that was it, and we left the Court.

The Tutelle comes to an end when the minor reaches 18 or on his death, should he die before the age of 18.

An informal survey of the incidence of tutelles in the Island was carried out in the year 2000 with the help of Advocates Marian Whittaker and Rose Colley. It showed that there were 24 tutelles in existence in 1998, 14 in 1999 and, at the time of the survey in 2000, over 20 then in existence. Since 1995, there have been 99 children subject to tutelles and, although very difficult to get a proper understanding of the average value of tutelles, it would appear that the vast majority are valued at less than £150,000.

But the management of tutelles has recently been changed to reflect the very different circumstances of the 21st century and the problems which can arise. For example:
  • There is no investigation into the suitability of a person to be either tuteur or an electeur. This can become particularly relevant in circumstances such as the payment of damages to a minor resulting from a medical negligence claim where the father or mother might be the tuteur and is financially unsophisticated or might have a criminal record for fraud or similar financial crime.
  • The customary law favouring the paternal over the maternal side of the family is potentially a breach of human rights legislation.
And as Sir Philip Bailhache told the States, “In a more close-knit and local community électeurs understood their duties and fulfilled them very satisfactorily. But in the aftermath of the Liberation and as a consequence, I think, of the considerable immigration which took place after 1945, people became more disconnected, in part, from the customary law that had served them so well for centuries. They did not really understand the duties of électeurs, the remedies available to them and the bodies of électeurs became empty forms.”

The change to the law, accepted by the States this April 2016, will replace a tutelle of seven by a single tuteur appointed by the Royal Court and a number of statutory duties in order to protect the interests of the minor would be imposed on that tuteur.

The French language has been retained because the English equivalent words – tutor or guardian - both have different grammatical or technical meanings. So although the tutelle as it stands is being abolished, the single appointee would retain the name “tuteur”.

And so passes the one remaining customary law procedure by which committees were established to look after the property of those who were unable or incapable of looking after it themselves.

Originally, there were three. They were the administratelle which looked after the property of someone who had left the Island and whose whereabouts were unknown; the curatelle which looked after the property of someone who was mentally disordered; and the tutelle, which looked after the property of a minor.

In each case, the family and friends were summoned to attend the Royal Court, quite often by the Connétable, and seven électeurs were sworn in. From those seven électeurs an administrateur, a curateur or a tuteur was chosen by them and he or she then took the oath before the Royal Court.

The duty of the électeurs was, broadly speaking, to keep an eye on the administrateur, the curateur or the tuteur and, of course, to approve the annual accounts.

The administratelle was abolished in 1963 and replaced by an administrator appointed by the Royal Court. The curatelle was abolished by the Mental Health Law of 1969 and was replaced again by a curator appointed by the Royal Court.

And now the tutelle has been abolished, although the administrator of the property of a minor will still be sworn in before the Royal court and still have duties and responsibilities. The tuteur as under the old law, will at all times be ultimately answerable to the Royal Court

Under the new law a tuteur must be appointed if the minor has either any immoveable property or any moveable property to a value of £25,000 or more. The Chief Minister would be empowered, by Order, to amend that figure.

A tuteur ordinarily will have rights to employ experts and to delegate certain limited functions in the same way as a trustee under the Trusts (Jersey) Law 1984

What of existing tutelles? The Chief Minister will bring in an order for necessary transitional provisions and savings for the purposes of the commencement of the Law and the repeal, if need be, of any other enactment and the abolition by it of any rule of customary law.

Such an Order will include provision as regards anyone already holding the office of tuteur when the Law comes into force, and the électeurs in relation the relevant tutelle; and the extent (if any) to which the new requirements will affect such persons.

In short, the new law will be consistent with the modern legal framework within which Jersey family and property law need to operate.

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