Lasting powers of attorney instructions ruling
Posted: 23rd October 2018
Those who take the wise step of signing lasting powers of attorney (LPAs) are entitled to give instructions concerning their future medical treatment. But, as a guideline High Court ruling made plain, that right does not extend to requiring attorneys to break the law by engaging in assisted suicide or euthanasia.
The Office of the Public Guardian (OPG) sought judicial guidance in respect of a number of LPAs that purported to give mandatory instructions, or express wishes, to the effect that steps should be taken to end donors’ lives in certain circumstances. The OPG estimated that it received about 120 such LPAs annually and queried whether they met the criteria for registration laid down by the Mental Capacity Act 2005.
In ruling on the case, the Court emphasised that it did not concern the unquestioned right of donors to instruct their attorneys to give or refuse consent to life-sustaining treatment. However, there was no doubt that an LPA that gave instructions requiring an attorney to act in a manner inconsistent with the law would generally be ineffective.
Noting that an attorney cannot rely on an LPA as a basis for committing an illegal act, the Court found that LPAs that express a preference for an attorney to do something amounting to ending a donor’s life, or assisting in that process, would be an encouragement to crime and thus of no effect.
The same applied to instructions or wishes to take steps to end life that were predicated upon a potential future change in the law, enabling assisted suicide or euthanasia. The ways in which such a change could be achieved were many and varied and for the Court to countenance inclusion of such provisions in LPAs at this stage would be likely to cause uncertainty and confusion.