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E89-12

Euthanasia and other impermissible directions

The Public Guardian v DA and others [2018] EWCOP 26 (Baker LJ)

Lasting powers of attorney – registration

In this case Baker LJ considered a number of different issues that arise seemingly frequently concerning the registration of lasting powers of attorney.

Of general interest are those that concern the inclusion in a power of preferences or instructions that direct or encourage assisted suicide or euthanasia.

Schedule 1 of the MCA is concerned with the registration of LPAs. Paragraph 11 requires the Public Guardian to apply to the court for a determination under section 23(1) if it appears that the power contains a provision that would be ineffective as part of a lasting power of attorney.

Sub paragraph (4) and (5) of paragraph 11 enables the court to sever any provision that would be ineffective or would prevent the instrument acting as a valid LPA.

The LPAs in question either contained instructions or preferences to the effect that in certain circumstances the attorney is to take or encourage steps to be taken that would bring about the donor’s death. At paragraph 27, Baker LJ held:

I agree with the combined view of the Public Guardian and the Official Solicitor that an instruction or preference in an LPA directing or expressing a wish that an attorney takes steps to bring about the donor’s death is instructing or encouraging someone to commit an unlawful act and therefore ineffective.

Incidentally, at paragraph 28, the judge determined an issue of general relevance, namely how the court should interpret a preference set out in the instructions box on the form and vice versa. He held:

On the first issue between the parties, I prefer Mr Rees’ argument. Applying Nugee J’s approach requiring flexibility to ensure that the donor’s autonomy is fully respected, I agree that an instruction is a direction in mandatory terms wherever it appears on the form. Thus, a stipulation in the “preferences” box that is clearly mandatory should be interpreted as an instruction. Equally, a provision in the “instructions” box may be couched in terms that make it clear that it is intended to be a preference.

In some of the LPAs instructions or preferences had been given that would only come into effect if the law changed to make assisted suicide lawful. Baker LJ held at paragraph 29:

On the second point, however, I accept Mr Entwistle’s submission that instructions and preferences predicated on a change in the law are ineffective. It seems to me that the ways in which the law could be changed in this field are so many and varied that permitting an LPA to be registered when containing an instruction or preference as to the attorney’s actions should the law change would lead to uncertainty and confusion. Towards the end of oral submissions, Mr Rees suggested that a clause which stipulated that “if at any point it becomes permitted as a matter of English law for my attorney to make a decision that my life should be terminated in certain circumstances and those circumstances arise, then I express a wish for my attorney to make a decision that terminates my life” would meet the objections raised on behalf of the Public Guardian. But in the event that Parliament at some future point permits an attorney to take steps to terminate the donor’s life, any change in the law is likely to be subject to detailed statutory provisions and guidance in a Code of Practice, the terms of which cannot at this stage be predicted. In those circumstances, for this court to give the green light to the inclusion in LPAs of any such provision at this stage would be likely to cause uncertainty and confusion. In those circumstances, the right course is to declare all such provisions, whether they be instructions or preferences, ineffective.

In the result, all the provisions under review were held ineffective and severed, see paragraph 42.

The second batch of cases concerned more mundane matters.

Section 10(4) of the Act requires a power to appoint attorneys to act:

(a) jointly,
(b) jointly and severally, or
(c) jointly in respect of some matters and jointly and severally in respect of others.

These are the only ways attorneys can be appointed and section 9 (3) provides that an instrument that does not comply with section 10 confers no authority.

In one set of cases, the power contained the following words:

If my spouse is capable of acting, my attorneys other than my spouse shall not act in any manner unless my spouse is unable to act on their own in that matter.

The court held that these words were inconsistent with a joint and several power and should be severed, see paragraph 52.

In another case, these words occurred:

The Primary Power of Attorney is Mrs [JR] should she survive her husband and be of sound mind and will be the decision-maker. [The other two attorneys] are secondary PAs should Mrs [JR] not be of sound mind or deceased.

Again, this was held inconsistent with a joint and several appointment and were severed (see paragraph 55). The appropriate result could have been achieved by the donor appointing his spouse as sole attorney and the others as replacement attorneys.

In the last case, the power required the consent of a third party before certain powers could be exercised. This was held to be unobjectionable, see paragraph 58.

It is worth mentioning that Baker LJ at paragraph 9 specifically approved of what District Judge Eldergill had said as follows:

In The Public Guardian’s Severance Applications [2017] EWCOP 10 at paragraphs 45 to 47, District Judge Eldergill compared and contrasted the new terminology in the latest versions of the prescribed forms with the statutory language in s.9(4). He observed:

“45. It is always risky to depart from the statutory language when drafting forms and the adoption of the headings ‘Preferences’ and ‘Instructions’ in the forms introduced by the Amendment Regulations is potentially misleading.
46. The term ‘instructions’ is not synonymous with ‘conditions or restrictions’.
47. Equally, the term ‘preferences’ is not synonymous with ‘best interests’ or a donee’s duty when deciding what is in the donor’s best interests to consider anything written in section 7 of the form concerning the donor’s wishes, feelings, beliefs and values, and the other factors to be considered by their donee(s): see s.4(6) of the 2005 Act.”

I respectfully agree with the district judge’s observations. It may be that those responsible for drafting forms will wish to reconsider these changes in the light of his comments.

Lastly in paragraph 46 of the judgement, Baker J considered a dictum of DJ Eldergill in the above case. He said:

In The Public Guardian’s Severance Application (supra), District Judge Eldergill suggested that there was nothing objectionable in an arrangement which provided that two of the attorneys must always agree on any decision jointly whereas the third could act independently and that it should not be necessary to create two instruments in order to achieve such an objective. Mr Rees acknowledges that the District Judge’s view is consistent with the principle of flexibility but submits that it is contrary to the clear wording of the statute. Although I have not heard a full-contested argument on that point, it seems to me that Mr Rees’ submission is well-founded.