David Rees QC and Tom Entwistle act in important test cases on euthanasia and assisted dying in the context of Lasting Powers of Attorney.
The Court of Protection has handed down its decision in Re DA & Ors, a series of test cases concerning the validity of words in Lasting Powers of Attorney. Tom Entwistle acted for the Applicant, the Public Guardian. David Rees QC acted for the Official Solicitor, who acted as an advocate to the Court in relation to the applications.
The applications raised two distinct but related issues in relation to the validity of words in Lasting Powers of Attorney (LPAs). The first issue was the effect of words in LPAs directing or expressing a preference for suicide or assisted dying. When making an LPA the donor can express “instructions” to their Attorney as well as “preferences” they wish their Attorney to take into account. In a number of instances donors of LPAs relating to health and welfare have given instructions or preferences relating to assisted dying or suicide. This is distinct from the question of withdrawing life-sustaining treatment, where it is clear that such directions or instructions may be given as an ‘advance decision’.
The Court of Protection held that, whether expressed as a preference or an instruction, words directing or encouraging assisted dying were invalid as, if complied with, they would lead the attorney to act unlawfully and commit a criminal offence. Such words must be severed from an LPA, so that they did not form part of the registered LPA.
Should the words be severed even though the law on assisted dying or euthanasia might change in the future? LPAs may last for many years, and after making an LPA the donor may subsequently lose capacity to make a new LPA. A future change in the law relating to assisted dying and euthanasia is subject of widespread public debate and serious proposals for reform. Some of the LPAs the Court considered contained directions which were contingent upon a change of law in the future, and so did not direct an act which is illegal. On this difficult issue the Court of Protection preferred the arguments of the Public Guardian that such words should also be severed, finding that the nature and content of a future change of the law was impossible to predict, and that allowing such wording to be included would lead to “uncertainty and confusion”.
The other issue raised in the applications related to the appointment of attorneys. An appointment may be joint, joint and several, or joint in respect of some matters and joint and several in respect of others. No other appointment is permissible. Certain LPAs contained directions which did not fall within one of these three categories. For example, one of the test cases contained wording to the effect that “If my spouse is capable of acting, my attorneys other than my spouse shall not act in any manner unless my spouse is unable to act on their own in that matter”. This wording was not consistent with a power being exercised jointly and severally. In that case, the offending words were severed from the LPA. It is notable that in the test cases concerning joint and several appointments, the donor’s desired outcome was often possible to achieve by different means that would be compliant with the Mental Capacity Act 2005.
These test-cases give valuable guidance, both on the sensitive issue of assisted dying and on practical matters regarding the drafting of LPAs. A copy of the Court of Protection’s judgment is available here.