A Tutelle is a method under Jersey law to protect the interests and managing the affairs of minor children who are considered too young to do so themselves. A Tutelle must accordingly be formed whenever a minor receives, for example by Will, Intestacy, Purchase or Gift, any form of property. If however the assets to be received have a value of less than £5,000 the Court will not require a Tutelle to be formed.
How is a tutelle formed?
Jersey Law requires 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.
In the event that there are not sufficient family and friends willing to take on the responsibility of being Electeurs, staff from the family’s lawyers are often appointed.
The lawyer acting for the Tutelle will prepare a contract which is passed in the Samedi Division of the Royal Court on a Friday afternoon. Where the Tuteur or Tutrice is one of the parents of the minor the Tutelle can be formed “à l’amiable” but if one of the parents is not the proposed Tuteur or Tutrice, the lawyer will need to prepare an Order of Justice setting out the reasons why the Tutelle is needed. The signed order of Justice is then passed to the Viscount, along with the names of the Electeurs. The Viscount will then serve a Summons on all the Electeurs requiring their attendance at the Court.
In Court the Electeurs will be called individually to the front of the Court, where they will be required to swear an Oath that they swear and promise before God to appoint that person who they consider to be most able to carry out the office of Tuteur. Having taken this Oath, the Electeurs are then asked in turn to name the person who they have chosen.
The Tuteur will then separately be required to swear a further Oath, promising to well and truly carry out their office, to bring the minor up in the fear of God, to protect their property with equal or greater care than if it were their own, to be guided by the advice and counsel of their Electeurs and to deliver accurate accounts for their period of office to any person entitled to them.
What are a tuteur's duties?
A Tuteur, who must be resident in Jersey, must act in accordance with the Oath which he has sworn and must act upon the advice and guidance of the Electeurs. In the event of disagreement as to how best the minor’s interests should be protected, the decision of the majority of the Electeurs (including the Tuteur) is binding and conclusive. The Electeurs along with the Tuteur, are jointly and severally liable for any losses suffered by the Tutelle.
What are the powers of the tuteur?
The Tuteur may normally only apply income from the assets to the benefit of the minor only if there is obvious or urgent need, he can, with the consent of the Electeurs, apply capital for the benefit of the minor.
With the consent of the Electeurs, the Tuteur may purchase real property for the minor, but if he wishes to sell real property he must apply to the Court for permission. In this event the Court will appoint two Jurats to consider the proposal and, based upon the report of those Jurats, will decide upon what terms any sale may take place.
The Tuteur is also entitled to charge up to 5% of the annual interest received from the minor’s property and to recover any disbursements expended.
What records must the tuteur keep?
Within 3 weeks of his appointment, the Tuteur must prepare an inventory of all personal and real property owned by the minor. This must be signed by the Tuteur and all of the Electeurs and entered into a Tutelle Book or File. Customarily the Tuteur keeps the Book or File and one Electeur is nominated to keep a copy.
It is the responsibility of the Tuteur to prepare annual accounts which must be approved by the Electeurs and entered into the Book or File. If the Tuteur fails to prepare either the inventory or the accounts, he is liable to a fine and to be removed from office.
What happens when a minor attains majority?
When the minor reaches the age of 20 (or if he should die) the Tutelle comes to an end. At this point the Tuteur must within 3 months prepare accounts for approval by the Electeurs and the minor, and must immediately pass over all monies and property to the control of the minor (who has now reached majority). The former minor has six months in which to challenge the validity of the accounts and if he considers that the accounts are untrue or that the Tuteur has been negligent in his management of the monies and property, he may bring an action against the Tuteur, provided that such action is commenced within one year and one day from the date upon which he reached majority.
How can we help?
We can assist in all aspects of establishment and administration of a Tutelle. Normally advice flows from closure of a deceased person’s estate but there may be other circumstances when a Tutelle could or should be established. Call Philip Syvret or Charlotte Elliott to discuss.