Test cases shed light on assisted dying in relation to Lasting Powers of Attorney (LPAs)

A series of Court of Protection (CoP) test cases have raised issues around the validity of wording in LPAs, specifically in relation to euthanasia and assisted dying.

Several cases involved someone creating an LPA in which they expressed instructions or preferences to their attorney indicating that assisted dying would be their choice.

The CoP found that wording of an LPA that expressed a preference or instruction for assisted dying would be invalid, as it would lead to the attorney acting unlawfully, and held that any such wording should be removed from an LPA. Further, the CoP held that such wording should be removed in current LPAs regardless of any debate around a possible future change to the law, saying that this would be ‘impossible to predict’, and thus the inclusion of such wording would only increase ‘uncertainty and confusion’.

In their judgements the CoP pointed out the distinction between assisted dying and instructions or preferences surrounding the withdrawal of life-sustaining treatment.

We regularly include preferences in Health and Welfare LPAs guiding attorneys if they were ever in a situation where they had to give or refuse consent to life sustaining treatment on behalf of a donor (person making an LPA). A lot of times clients say that if their life was coming to an end then they would not wish to be resuscitated or to have any invasive medical treatment  but they would want to be made comfortable and allowed to die with dignity. Including wording to this effect as a preference can be very helpful to attorneys if they are ever faced with this horrible dilemma.

Lindsey Sharples is a solicitor in the private client team at Barker Gotelee, Solicitors in Suffolk.

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