Clarifying the Enforceability of Instructions and Preferences in LPAs

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Approximately 120 cases are brought before the Court of Protection each year for it to decide on the effectiveness of provisions included within Lasting Powers of Attorney (LPAs).

LPAs are extremely powerful documents that give individuals or “attorneys” the right to make decisions on a donor’s behalf, both in relation to the donor’s finances and his or her health and welfare. An LPA must be registered with the Office of the Public Guardian (OPG) before it is effective, and the OPG carefully considers the contents of an LPA before it is successfully registered.

In Depth

Within an LPA, it is possible to provide guidance to one’s attorney(s) in the form of “instructions” or “preferences”. An instruction stipulates what an attorney must do when acting on the donor’s behalf, whereas a preference is non-binding. Often, these sections of an LPA are intentionally left blank, as badly drafted instructions or preferences can make an LPA impracticable or unusable.

An example of an instruction is: “My attorneys must ensure that I maintain a vegan diet.”

An example of a preference is: “I wish to live within 10 miles of my cousin Betty.”

In the recent case of The Public Guardian v DA [2018] EWCOP 26, the Public Guardian brought two series of test cases before the Court of Protection to determine the validity of certain provisions within LPAs. Interestingly, one set of test cases related to the enforceability of instructions and preferences in respect of euthanasia and assisted suicide in health and care LPAs.

The following is an example of an instruction relating to assisted suicide, which was present in the case of PC1:

“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.”

The following is an example of a preference relating to assisted suicide, which was outlined in the case of AG:

“If the option is available at the time and my pain and suffering is unbearable and there is no prospect for an improvement, my preference is for active euthanasia to end my life with dignity and peace.”

It is widely known that euthanasia and assisted suicide are not permitted within the United Kingdom, as clearly stated in the case of PC1, above. The Court of Protection therefore, unsurprisingly, ruled that in all seven test cases from the first series, the instructions and/or preferences encouraging an attorney to assist the donor in ending his or her life were ineffective. This is because the act itself (i.e., assisted suicide) is unlawful in this jurisdiction. Even if an instruction or preference is stated to be conditional on a change of law (i.e., if assisted suicide becomes legal at some impending date), such as in PC1 above, the result is the same—it is impossible for anyone to predict the future.

If an instruction or preference is deemed to be ineffective, it is usually removed or “severed” from the rest of the LPA. The OPG has a statutory duty to consult with the Court of Protection, which is often a lengthy process requiring a Court Order and will undoubtedly cause delay to the LPA being registered. Usually, the LPA can proceed to registration with the exclusion of that specific instruction or preference, although, in extreme cases the OPG will refuse registration of the LPA all together.

Although it is always best for the donor to speak to his or her attorney(s) about any personal wishes and expectations, it is important to remember that instructions and preferences must always lie firmly within the law. An alternative to a donor providing instructions or preferences within an LPA itself is to prepare a Letter of Wishes, which sits alongside the LPA. A Letter of Wishes is not legally binding, but does provide moral guidance to an attorney and is flexible in that it can be amended without any formalities.

If there is any hesitation as to whether an instruction or preference should be included within an LPA, it is best to seek legal advice.