Ensure your wishes are respected
The recently published Terminally Ill Adults (End of Life) Bill, aims to permit people in England and Wales who have an incurable illness to be legally assisted by a doctor to die. Whichever side of the debate you support, the bill is a reminder that it is important to make your wishes clear if you have strong views about your end-of-life care.
One option is to make a health and welfare lasting power of attorney (LPA) which gives trusted individuals the power to act in your best interests and communicate your preferences when you can no longer express them yourself. It is a myth that your loved ones will be able to make these important healthcare decisions. Without a health and welfare LPA in place, your family cannot legally make decisions about your healthcare. While they will likely be consulted, decisions may instead fall to healthcare professionals or could even be subject to court intervention.
The Terminally Ill Adults (End of Life) Bill
The Terminally Ill Adults (End of Life) Bill, sometimes referred to as the ‘Assisted Dying Bill’, represents a significant shift in how the law approaches end-of-life choices. It proposes to allow terminally ill adults to request medical assistance to end their life under tightly regulated conditions. While the bill is still in its early stages and could take considerable time to come into force (if at all), its introduction has highlighted issues about individual autonomy and dignity in the face of terminal illness.
Key proposals under the bill include the following:
- The bill would permit a terminally ill adult to seek assistance from a doctor to end their life via a process known as physician-assisted suicide. This differs from voluntary euthanasia, where a healthcare professional administers medication to end a person’s life – something that will remain illegal. Under the proposed legislation, a doctor may prescribe and prepare the ‘approved’ substance, but the individual must self-administer it. Under the initial proposals, no doctor or any other person would be allowed to administer the medication on behalf of the terminally ill individual.
- The bill imposes the following requirements on the person seeking assistance:
- they must be resident in England or Wales and have been registered with a GP for at least 12 months;
- they must have the mental capacity to make the choice and be deemed to have expressed a clear, settled and informed wish, free from coercion or pressure;
- they must be expected to die within six months;
- they must make two separate declarations, witnessed and signed (by them or a proxy on their behalf), about their wish to die;
- two independent doctors must be satisfied the person is eligible, and there must be at least seven days between the doctors’ assessments; and
- a High Court judge must hear from at least one of the doctors and can also question the dying person, or anyone else they consider appropriate. There must be a further 14 days after the judge has made the ruling (although this can be shortened to 48 hours in some circumstances.
While the bill passes through Parliament, it serves as a reminder of the importance of documenting your healthcare preferences through instruments like a health and welfare LPA or an advance directive (also known as a ‘Living Will’).
What is a health and welfare LPA?
A health and welfare lasting power of attorney is a legal document that allows you to appoint one or more people to make decisions about your health and personal welfare if you lose the mental capacity to do so. These decisions can include ones about your medical treatment, living arrangements, and daily care.
Unlike a property and financial affairs LPA, a health and welfare LPA can only ever come into effect if you are deemed to be unable to make decisions for yourself, ensuring your preferences are respected at critical moments.
What is the difference between an LPA and an advance directive?
In contrast to an advance directive, an LPA allows your appointed attorney(s) to make a range of healthcare and personal welfare decisions on your behalf, rather than simply setting out specific treatment preferences in advance. An advance directive (also known as a Living Will) is a legally binding document that enables you to refuse specific medical treatments in certain circumstances, but it does not empower anyone to make broader decisions about your care. Having both an advance directive and a health and welfare LPA can ensure that your wishes are clearly documented and that trusted individuals can act on your behalf if needed.
Why it is important to document your wishes
Knowing that you are seriously ill will be upsetting enough for your family and loved ones, but it is particularly stressful for them to be faced with difficult decisions if you have not communicated your wishes. In the absence of clear instructions, a dispute can arise among family members who have different personal views or recollections of things you have said in the past.
During the process of setting up a health and welfare LPA, you can consult your medical team about your prognosis and any key decisions which may need to be made in the future. Your solicitor can then help you to document your preferences to provide clarity and to ensure that your chosen attorneys have the authority to act according to your instructions.
What decisions can be included in a Health and Welfare LPA?
Through a health and welfare LPA, you can outline your preferences regarding:
- consent or refusal of life-sustaining treatment;
- preferred care and living arrangements, such as home care or residential care;
- dietary preferences, religious or cultural considerations; and
- medical treatments you wish to avoid.
The scope of decisions included in your LPA can be tailored to reflect your values, beliefs, and priorities.
How we can help
We have extensive experience in drafting health and welfare LPAs and guiding clients through the process. Our team can:
- explain the scope and benefits of an LPA;
- help you decide who to appoint as attorneys and how to document your wishes;
- draft your health and welfare LPA to ensure it accurately reflects your instructions and preferences; and
- ensure your LPA is legally sound and registered with the Office of the Public Guardian.
For more information or to discuss setting up a health and welfare LPA, contact Rebecca Newman, in our private client team on 01480 411224 or via email at [email protected].
Rebecca Newman, Solicitor
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