Court rules that assisted suicide clauses in LPAs are ineffective

People setting up Lasting Powers of Attorney (LPAs) to protect their interest in case they lose mental capacity in the future should be given as much scope as possible to outline their wishes.

However, an instruction that their attorney – the person they appoint to look after interests – should help them in an assisted suicide would be ineffective as it would be encouraging an unlawful act.

That was the decision of the Court of Protection in a series of test cases that were dealt with together.

The LPAs in the cases contained provisions that contemplated euthanasia or assisted suicide by the attorneys. In some cases, they were expressed in mandatory terms as “”instructions””, whereas in others they were expressed as “”preferences””.

The Public Guardian asked the court to determine whether such provisions should be accepted when approving LPAs.

The court held that the authority conferred by an LPA was subject to the provisions of the Mental Capacity Act 2005, including consideration of the donor’s “”best interests”.

The Act should be construed to give flexibility to donors, but an instruction or preference expressing a wish that an attorney took steps to bring about the donor’s death was asking someone to commit an unlawful act and was therefore ineffective.

The ruling is helpful but unlikely to have a widespread effect as most people setting up LPAs do not include instructions about assisted dying, although they often outline their wishes about the kind of medical treatment they wish to receive.

There are two types of LPA.

The property and finance LPA allows you to appoint someone to look after your financial affairs; the personal welfare LPA lets you grant an attorney authority over such matters as health care.

There are safeguards to prevent the system being abused so you can prepare for the possibility of ill health secure in the knowledge that you can leave important decisions in the hands of someone you trust.

If you don’t have such arrangements in place, your family may have to go through complicated and time-consuming legal processes just to get the authority to help run your affairs for you. That is the last thing they want at a time when they will already be worried about you and your failing health.

LPAs should be drawn up with the help of a solicitor to ensure that they accurately express your wishes and protect your interests.

Please contact Nicki Denton-Masih or Jonathan King if you would like more information about making a will or creating a lasting power of attorney.