The Court of Protection have ruled that references to assisted dying and euthanasia, even if they are phrased in non-mandatory terms, should be removed from Lasting Power of Attorney (LPA) documents.
End of life planning can be an extremely difficult topic to broach. It is difficult to imagine a time when we are no longer living. However, for those with life limiting conditions that are forced to confront the idea of dying, many have been using Lasting Power of Attorneys to disclose their express wishes when the illness limits capacity.
Recently, a string of Court of Protection (CoP) test cases have considered the importance of considering appropriate language and wording that is used in the LPA document when issues surrounding assisted dying are concerned.
The cases highlighted how the wishes of the donor could be interpreted in a way which should make certain LPAs null and void. In some cases, the provisions made by the donor were expressed in mandatory terms, with the attorney being given explicit instructions.
However, other LPAs, expressing a wish to die in certain circumstances, were presented as donor desires which rendered them as non-binding preferences.
The former and latter place the attorney in a position which, if they complied with the request, could result in unlawful actions. The ruling therefore stated that any such imperative language should be removed from all LPAs.
Despite the fact that the law has considered euthanasia and assisted dying in recent years, the Court of Protection was insistent that all wording pertaining to assisted dying should be removed in its entirety regardless of the possibility of future changes to the law as these would be ‘impossible to predict.’
Allowing and including these declarative statements, even if they are phrased as express wishes, would only cause concern, confusion and ambiguity.
The second issue raised by the test cases was the appointment of attorneys, which may be:
joint;
joint and several; or
joint in respect of some matters, and joint and several in respect of others.
Again, the wording in some of the LPA cases looked at meant that the attorneys failed to fall into any of the three areas. Any document that fails to specify explicitly who, how and when the attorneys are used should be removed from the LPA without delay.
Whereas, an LPA should highlight the desires and wishes of the donor once they have lost capacity, it should not be at the expense or detriment of the attorney.
Are you aware of LPAs that have caused a similar ambiguity? What happens if similar LPAs are void after the donor has lost capacity?
