Power of attorney test cases shed light on assisted dying in relation to LPAs

The test cases, in which Tom Entwistle acted for the Public Guardian (the Applicant) and David Rees QC TEP acted for the Official Solicitor, raised two key issues around assisted dying and around the appointment of attorneys.

With respect to the issue of assisted dying, several cases showed that someone creating an LPA had expressed instructions or preference to their attorney indicating that this would be their choice (the CoP pointed out the distinction between this and the withdrawal of life-sustaining treatment, given as an ‘advance decision’).

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 engender ‘uncertainty and confusion.’

The second issue raised by the test cases was the appointment of attorneys, which may be:

• joint;
• joint and several; or
• joint in respect of some matters, and joint and several in respect of others.

The test cases found that the directions of some LPAs do not fall into one of these three jurisdictions. The CoP held that wording inconsistent with one of these three categories should be removed from an LPA.

5 Stone Buildings, where both Tom Entwistle and David Rees are Counsel, points out that the results of these test cases are vital both for negotiating ‘the sensitive issue of assisted dying and on practical matters regarding the drafting of LPAs.’

Sources

• 5 Stone Buildings
• Court of Protection judgment (PDF)