A living will

The highly emotive issue of assisted dying has attracted a huge amount of media attention in recent years, with parliament once again considering the issue following the introduction
of Lord Falconer's Assisted Dying Bill earlier this year. The debate over assisted dying is likely to continue for some time and it has had the effect of increasing public awareness in end-of-life care decisions more generally.

While a new law around assisted dying remains very much in discussion, current legislation does allow for a person to make clear their wishes concerning the medical treatment they would like to receive at the end of their lives, either by way of a registered health and welfare lasting power of attorney (LPA), or by way of an advance decision.

Often known more informally as a 'living will', an advance decision allows a person to set out circumstances under which they would no longer wish to receive medical treatment. The wishes of the individual laid out in the advance decision are valid even if they subsequently lose mental capacity.

The recent Court of Protection case of Re E sub nom (1) N (2) S) v (1) E (2) M (3) ORS [2014] has brought into sharp focus the difficulties in ensuring that wishes relating to an end of life decision are carried out in practice.

The case concerned an individual known as E, who was diagnosed with early stage dementia in 2006. In 2008, in preparation for such time when she would no longer be able to make decisions about the healthcare she received, E took steps to ensure that her wishes were known in advance.

Firstly, E signed an advance decision (living will) which laid down situations when she no longer wished to receive medical care, and she appointed her husband as the person responsible to ensure these wishes were carried out, or, in the event of his death, her former carer. Secondly, E created a LPA with power to make wellbeing and healthcare decisions, appointing her husband and another person as her attorneys. Again, in the event that her husband died before her, E appointed her former carer as attorney.

E's condition deteriorated and the LPA was registered in 2009 and in June 2014, E's husband died. At this point, E's children sought to prevent her former carer from being appointed attorney, alleging that the carer had emotionally, financially and physically abused both E and her husband.

Following these allegations the attorneys disclaimed their appointment under the LPA and the former carer renounced her appointment under the advance decision. This in turn led to several questions about the continued validity of both the advance decision and
the LPA.

Firstly, the court confirmed that the LPA was only created from a legal standpoint when it was registered in 2009. Secondly, section 25 (2) (b) of the Mental Capacity Act 2005 states that an advance decision is not valid if it was created before the LPA is created, and has therefore been superseded. As E's advance decision was created in 2008, it was therefore no longer valid.

In addition, the decision of the original attorneys to disclaim their appointment under the LPA raised the possibility that E's wishes regarding her end of life care under the LPA would also be invalid.

Rather than disregard E's clearly expressed wishes, the court elected to make a declaration under section 26 (4) of the Mental Capacity Act 2005. The effect of this was to confirm that the advance decisions made by E in her 'living will' were still valid and could therefore be applied to her continuing medical treatment.

The case demonstrates the Court of Protection's willingness to give effect to the expressed wishes of an individual to refuse medical treatment made in contemplation of the end of their lives, even in circumstances where the strict application of the letter of the law would suggest they hold no weight.

Nevertheless, the necessity of obtaining a declaration from the court confirming that E's wishes were still valid must have placed a great strain on
the family, and serves to emphasise that great care must be taken when making arrangements for end
of life care.

Matthew Evans is a partner at Hugh James

He writes the regular vulnerable clients comment in Private Client Adviser