A recent Court of Protection decision has provided further clarity on the validity of words in lasting powers of attorney (LPA) where they relate to euthanasia or assisted suicide. In one of two test cases brought by the Public Guardian, by applications under the Mental Capacity Act 2005, the court had to consider the provisions in the LPAs for personal welfare which contemplated euthanasia by the attorneys.
The stated aim of the Public Guardian in bringing these applications was to enable the statutory office-holder to be in a position to provide guidance as to whether provisions of this sort are lawful and likely to be severed by the court.
Some of the provisions in the LPAs were expressed in mandatory terms which rendered them “instructions” and others were expressed as wishes, rendering them non-binding “preferences”. The issue for the court was whether instructions or expressed preferences as to actions which bring about the end of the donor’s life are ineffective within the meaning of Schedule 1 paragraph 11 (2)(a) of the 2005 Act.
The court came to the view that “an instruction or preference in an LPA directing or expressing a wish that an attorney takes steps to bring about the donor’s death is instructing or encouraging someone to commit an unlawful act and therefore ineffective.” In short, the court confirmed the right course is to declare all such provisions, whether they are instructions or preferences, ineffective.
In this context the court were reminded that, where LPA provisions contemplating euthanasia/assisted suicide by attorneys, the MCA “…should be construed in a way which gives as much flexibility to donors to set out how they wish their affairs to be dealt with as possible, the Act being intended to give autonomy to those who are in a position where they can foresee that they may in the future lack capacity…”
The right terminology
As a reminder, the court provided further clarity.
Paragraph 8 of the judgment explains:
“The prescribed requirements for the execution of an LPA are set out in regulation 9 of the 2007 Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations. The prescribed forms are contained in Schedule 1 to the 2007 Regulations. Since the introduction of LPAs in the MCA, three versions of the property and affairs form and three versions of the health and welfare form have been prescribed. The current version 3 has been valid since 1 July 2015. The prescribed forms contain provisions for the donor to insert. In the first two versions, these provisions were described as “restrictions and/or conditions” and “guidance”. In version 3, these labels have been changed to “instructions” and “preferences” respectively. The notes to section 7 of the form explain that “your attorneys don’t have to follow your preferences but they should keep them in mind” whereas “your attorneys will have to follow your instructions exactly”.
A closer look at the new terminology used in the latest versions of the LPA forms raises a number of issues concerning the language used when drafting the forms.
Going forward, those responsible for drafting LPA forms would be well advised to read this latest decision before finalising LPAs.
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