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The Public Guardian v DA and Others [2018] EWCOP 26 & The Public Guardian v BP and others [2018] EWCOP 26

The Court of Protection gives guidance on whether you can ever ask for euthanasia in your Lasting Power of Attorney.

There are two types of Lasting Powers of Attorney ("LPA"): a Personal Welfare LPA and a Property and Financial Affairs LPA. Before an LPA can be used, it must be registered with the Office of the Public Guardian. The Office of the Public Guardian will only register an LPA if it is valid.

The Public Guardian v DA and Others [2018] EWCOP 26

Within the LPA document, a donor must decide how they want their attorneys to make decisions on their behalf, including any things the attorney must do ("instructions") and things they would like the attorney to do ("preferences").

The judge stated that unless the LPA contained instructions or preferences which would prevent it from operating validly, the Office of the Public Guardian was required to register it, even if he did not believe it was in the donor's best interests to do so.

The judge went onto say that an attorney cannot use the LPA as a basis for carrying out an illegal act. He confirmed that an instruction, or even a preference, for the attorney to conduct an illegal act, i.e. euthanising the donor, would make it invalid and the Office of the Public Guardian could not register it. He confirmed that an instruction or preference relating to euthanasia in the event it was legalised, would still make the LPA invalid.

The judge also commented that whether a provision is an instruction or a preference should be interpreted by the language that is used:

"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." (paragraph 29)

The Public Guardian v BP and others [2018] EWCOP 26

If a donor appoints more than one attorney, they must specify within the LPA how they want the attorneys to make decisions:

(a) jointly (attorneys must agree all decisions together)

(b) jointly and severally (attorneys can make their own decisions or together)

(c) jointly in respect of some matters and jointly and severally in respect of others (attorneys must agree some decisions and can make others on their own)

In this case, the judge confirmed that the above list was exhaustive and if a donor specified another way for attorneys to make decisions, it would make the LPA invalid.

Comment

These cases provide useful guidance on issues which might prevent an LPA being registered. When making an LPA, the donor needs to be careful that they do not include instructions or preferences that will make it automatically invalid. The donor must avoid any instructions or preferences which relate to their euthanasia. If the donor is appointing more than one attorney, they must decide how the attorneys can make decisions and must only choose from one of three options (see the list above).

These cases also provide guidance to attorneys on how to interpret what is written in the LPA when they are making their decision. The attorneys must look at what the donor has written, rather than where it is written, to decide whether it is an instruction or preference.

If you would like to find out more about making an LPA, you can read our guide here.

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