The simple answer is ‘no’. There have been recent cases before the courts to consider whether you can include instructions or preferences regarding assisted suicide/euthanasia in Lasting Powers of Attorney (LPA) and the consensus is that such terms cannot be included in LPAs.
A Lasting Power of Attorney is a document in which you appoint attorneys to act on your behalf and, in the event of your incapacity, that appointment continues. There are two types of Lasting Powers of Attorney:
- one for financial decisions
- one for personal welfare decisions
In both types, there are sections for ‘preferences’ and ‘instructions’. Instructions are mandatory and must be followed by your attorneys and preferences are merely wishes.
Many people include preferences or instructions in their Lasting Powers of Attorney; for example, that the attorney must product accounts annually or that the attorney can view their Wills and medical records. However, these provisions cannot be such that they would be ineffective as part of a LPA e.g. you cannot include provisions that are too ambiguous or which are unlawful. If the provisions make the LPA ineffective (e.g. they are too ambiguous), the LPA either cannot be registered (and therefore cannot be used) or it is registered without the offending preference or instruction.
The cases before the Court were to decide whether LPAs could include wishes and/or instructions regarding assisted suicide/euthanasia. Some of the wording included in the LPAs in question was as follows:
“If the option is available at the time and my pain and suffering is unbearable and there is no prospect for improvement, my preference is for active euthanasia to end my life with dignity in peace”
“In the event of my having a long-term diagnosis for a painful or incapacitating or undignified, but not necessarily terminal, condition, I wish my Attorney to do all possible to transit to Dignitas (in Switzerland) or similar”.
It is a criminal offence to do something capable of encouraging or assisting the suicide or attempted suicide of another person under the Suicide Act 1961.
The Court held in these cases that the person making the LPA (donor) was clearly intending and encouraging their attorneys to assist their suicide and, as this is an unlawful act, this part of the LPA could not be effective. The Court held that this was unlawful and ineffective in an LPA regardless of whether the donor has included this as a preference or instruction.
In some of the cases, the donor has included wording so that the so that assisted suicide/euthanasia was legal.
The Court also held that clauses in LPAs would not be effective even if the donor was only expressing a wish/instructing their attorneys to assist in their suicide in the event of the law being changed to make such assistance legal. The courts’ view was that it was impossible to say how the law may be changed and that it could be changed in a multitude of ways and so to approve wording in an LPA would be inappropriate before parliament decided if the law should be changed and, if so, exactly how it should be changed.
This is certainly an issue which will be much debated over years to come and if you are in any doubt about Lasting Powers of Attorney then you should take legal advice in relation to them.
If you have any questions on the topics covered above please contact Holly Chantler, Partner and Head of Private Client team.