Can we pre-empt a change in the law for assisted suicide in Lasting Powers of Attorney?
At present, a Lasting Power of Attorney (LPA) for health and welfare allows a donor to decide whether they give consent for their attorneys to make decisions regarding their life sustaining treatment. However, the Office of the Public Guardian (OPG) brought a case in front of the Court involving the possible registration of a series of nine cases where the Lasting Powers of Attorney also included instructions and preferences regarding euthanasia or assisted suicide.
The OPG confirmed they currently receive over 120 Lasting Powers of Attorney each year which reference euthanasia or assisted suicide and they were looking to the Court to provide guidance as to whether or not the Lasting Powers of Attorney should be registered.
The OPG must seek the Court’s approval to register a LPA if all or some sections would prevent the LPA from operating as a valid LPA. The Court can either order the OPG to register the LPA, amend and register the LPA, or refuse the registration of the LPA.
The Court held that the instruction and preferences section of an LPA cannot be used to allow or instruct the attorneys to act illegally and if these preferences or instructions are included, then this will render the LPA as invalid.
At present, if a person acts or assists with assisted suicide, they will be committing an offence under the Suicide Act 1961. Section 2 of the 1961 Act defines assisted suicide as ‘(1) A Person (‘D’) commits an offence if (a) D does an act capable of encouraging, assisting the suicide or attempted suicide of another person, and (b) D’s act was intended to encourage or assist suicide or an attempt at suicide. (1A) The person referred to in subsection (1)(a) need not be a specific person (or a class of persons) known to, or identified by D and (1B) D may commit an offence under this section whether or not suicide, or attempt at suicide, occurs’.
The Court held that it would be ‘likely to cause uncertainty and confusion’ if a person includes in their LPA instructions or preferences that their attorneys may act in a certain way as long as the laws have been changed meaning the act would then be legal. Further to this, the Court held that including wording in the preferences section, which still provides an instruction, is held as an instruction regardless of which box it has been written in.
Examples of preferences or instructions which the Court ordered to be rejected include: “should a vegetative existence arise (i.e no prospect of a reasonable quality of life is possible) then life is to be terminated”. “At the time of writing these instructions, assisted dying is not permitted under UK law but my Attorney must be aware that it is my wish that, when the time comes, I can choose to end my life on my own terms, whether or not this means travelling outside of the UK to a country where assisted dying is legal”. In this case the Court held that this is clearly a statement of intention by the donor and not an instruction or preference; therefore the comment is ineffective as part of an LPA.
Taking into account the Courts refusal to order the registration of the LPA’s which state instructions and preferences in relation to assisted suicide, it is key to ensure that you do not include instructions or preferences within an LPA which instructs the Attorney to assist in an assisted suicide or act in a way which would be deemed as assisting in assisted suicide.