Advance decision to refuse life-sustaining treatment (“living will”) made by eye movements is upheld
by Rebecca Haywood, May 18th, 2012
The case of Re: XB (Court of Protection) has come before Theis J, sitting as a Court of Protection judge, as an application from an NHS Trust who challenged the validity of an advance decision to refuse life-sustaining treatment (sometimes referred to as a living will) made by a patient using eye movements.
The advance decision was made in November 2011 by a man aged 67 suffering from motor neurone disease and included a refusal of life-sustaining treatment, such as artificial breathing support and artificial nutrition (food and water by tube). MND is a progressive neurological disorder that causes the muscles to waste away, affecting movement, speech, swallowing and breathing, and is generally fatal within two to five years although Professor Steven Hawking is a noted exception. Actors David Niven and Cyril Cusack, and Group Captain Leonard Cheshire were also sufferers.
The patient had discussed making this decision with his wife many times in 2010 and 2011 and she had found a precedent on the internet. The patient then used eye movements to communicate his consent to the contents of the advance decision with family members, a carer, a social worker and a medical practitioner present. The patient subsequently lost all ability to communicate.
One of the patient’s other carers (who was employed by the NHS Trust in this case) challenged whether he had actually been able to communicate agreement to the contents of the advance decision at the time it was made. It was established that the carer questioning the position was not actually present when the advance decision was signed. Under the Mental Capacity Act 2005, Living Wills should be in writing. However, the documents are still recognised if the individual concerned indicates their decision in front of witnesses, and allows somebody to sign on their behalf, also in front of witnesses.
Mrs Justice Theis held that she was satisfied that the decision represented the patient’s wishes. In making her decision she stressed the importance of clarity when drafting an advance decision and the need for health authorities involved to investigate advance decisions urgently should they have any doubts about their validity. She also suggested that organisations offering template advance decisions should review them in the light of this case. The judge said that the patient’s life could now “peacefully end” and added “I hope the next stage proceeds as well as can be expected.”
The man’s wife told the court that he “wanted to be allowed peacefully to end his life.”
The lawyer representing the family said after the hearing that the case showed the importance of preparing advance decision documents carefully. He added: ‘XB was a proud and intelligent man living in the south of England suffering from the terminal illness motor neurone disease. He has fought a long battle against the disease and has now reached a stage where he can no longer communicate his needs. His family are pleased that the court were able to clarify that his wishes were made and set out in a valid advance directive. They would appreciate that their privacy is respected at a time of obvious grief.”
Living wills, or advance decisions, allow people with or without a serious illness to set down at what point they want their treatment to cease so they can die. They were given legal force by the Mental Capacity Act 2005. This landmark case is the first Court of Protection case on the validity of an advance decision to refuse life sustaining treatment since the Mental Capacity Act came into force in October 2007.
If you would like to speak to a member of the Probate, Wills and Trusts Team about advance decisions, Wills or Powers of Attorney, please do get in touch.
How much do you know about Wills?
by Rebecca Haywood, March 12th, 2012
You may have a Will or you may not; you may have written it yourself or it may have been prepared by a lawyer; it may be recent or it could be many years old. When was the last time you reviewed it? Have things changed since it was drawn up? Can you answer the following questions?
- Do you actually need a Will, or is it OK for your family to sort everything out however they want when you die?
- What is a Codicil?
- Can an executor of a Will also be a beneficiary, or does that mean they lose out on any benefit under the Will?
- If you leave something to your child but they die before you, will that gift automatically go to their spouse/civil partner or somewhere else?
- Do you have to leave anything to your family or can you cut some or all of them out?
- How should you amend a Will?
- If you get married or divorced, move house, change your name or have children, how will these life-changing events affect your Will?
- How should a Will be signed?
- How are joint bank accounts treated?
- If someone is not named in your Will, might they still end up being a beneficiary?
- What is the difference between a Will and a Power of Attorney?
- Are my beneficiaries going to have to pay tax?
- If your Will just leaves everything to your other half, do you need to put any more than that in it?
If you do not know or are not sure of the answers to any of these questions, you should seek professional advice to ensure that your requirements are properly covered in a professionally-drawn Will. If you don’t have a Will at all then you are running a very real risk of your estate passing to people you may not even know on your death.
You should also consider preparing a Power of Attorney in case this is needed in the future – who would pay your bills if you got hit by a bus? The banks need specific paperwork before they will let third parties access your accounts – and rightly so.
We are experts in Wills and we know all the answers – contact our Probate, Trusts & Wills team.
Rebecca Haywood
The financial feud between the L’Oreal heirs
by Fiona Dodd, October 17th, 2011
The assets of Europe’s wealthiest woman, Liliane Bettancourt, were today placed under the control of two of her grandchildren, whilst her personal affairs are to be supervised by just one of them. A French court ruled the 88-year old L’Oreal heiress, who has reportedly been diagnosed with Alzheimer’s disease and dementia, no longer has the mental ability to manage her finances. This is the latest episode in a four year family feud and Mme Bettancourt’s lawyers are appealing the decision. At stake is the management of more than €16billion.
A similar situation could happen under English law. Here we have the Court of Protection which determines whether or not a person has the faculties to make their own decisions. If they cannot the judge appoints a Deputy to manage their affairs; mirroring the way that Mme Battencourt’s 25-year old grandson Jean-Victor Meyers has been appointed her guardian. The Court hears evidence from doctors and interested parties, which are typically close relatives. The judge uses that evidence to decide what the Deputy is authorised to do and how closely they should be supervised.
This process can take weeks, if not months and is costly. Once appointed the Deputy must report to the Court regularly and be supervised by representatives of the Office of the Public Guardian. If the Deputy needs to act outside of their given authority a further Court application is required.
Yet this process can be avoided. The Court of Protection should be a last resort if no other arrangements can be put in place. A Lasting Power of Attorney is usually the best alternative. This document allows a person to appoint one or more individuals to manage their affairs if they become incapable. There are two types of Lasting Power of Attorney. One deals with health and welfare matters, while the more common form manages legal and financial affairs. Neither requires official supervision. The person drawing up the document can simply decide who should be their attorney, and what powers they should have.
The legal fees of this argument may mean nothing to the Bettancourt family, but for most people a court application is an expensive option. A Lasting Power of Attorney can save time and expense. It also protects a person’s right to choose who should manage their affairs, instead of letting a judge take the decision for them.
By Fiona Dodd
Powers of Attorney – what does “registration” mean?
by Rebecca Haywood, September 20th, 2011
My 15 minutes of fame finally arrived last week when I was asked by a journalist from the BBC to comment on how poorly banks sometimes deal with powers of attorney. The report sought to raise awareness of how the banks (and other financial institutions) simply do not understand the difference between the different powers of attorney used, and what registration should imply in respect of the capacity of the donor.
Generally, banks and other institutions are most likely to come across one of three types of power of attorney. The first and most basic is a General or Ordinary Power of Attorney. Very simply, this is really meant for use when one might be unable to deal with one’s affairs for a specific period of time – perhaps off on a gap year, or going to a kibbutz for six months, or knowing that one’s house sale is likely to go through while one is enjoying that oft-promised Caribbean cruise. These documents are not registered at the Office of the Public Guardian and the Donor (the person giving the power) is meant to oversee and authorise what their Attorney does, so they must have the mental capacity to do so.
The next is an Enduring Power of Attorney. Although new EPAs cannot be created, there are a lot of them out there which are still valid and waiting to be used so they will be around for many years to come. The confusion with these so far as banks (etc) are concerned, is often caused by the fact that they can be used by the Attorney to act on behalf of the Donor whether the Donor has mental capacity or not. If the Donor still has capacity but perhaps just doesn’t want to be bothered with the minutiae of paying everyday bills, or is physically unable to deal with their own affairs (a broken wrist preventing them signing their cheques, for example) then the document can be used by the Attorney without the involvement of the OPG because again, the Donor is expected to oversee and supervise what their Attorney does under it. The terminology may also be confusing – presenting the document at the bank is called “registering” it; but should the Attorney believe that the Donor is becoming or has become mentally incapable of managing their affairs then a different kind of “registering” is needed, in the form of sending the document to the OPG for them to add to their registers, and serving notice of this on certain people as required by statute. The OPG may then require the Attorney to account for their management of the Donor’s affairs in the future.
Finally, the new Lasting Powers of Attorney can only be used once they have been registered at the OPG, whether the Donor has capacity or not (in the case of the Property and Affairs document) and only if the Donor has lost capacity (for the Health and Welfare document). This is clearly going to be even more confusing for third parties – at least if they are presented with an EPA registered at the OPG this should alert them that capacity is likely to be an issue, but all LPAs will be registered and so will give no indication as to the capacity of the Donor.
I believe that whenever a customer wants to register an EPA or an LPA, the relevant institution should take time to sit down with the Attorney and, if possible, the Donor, to go through with them exactly what their requirements are. The position is not always one of black or white, capable or incapable, and many people know that they are beginning to lose the ability to deal with everything themselves but still wish to be involved to some degree, perhaps by having a cash card with a daily withdrawal limit.
My recommendation would be always to see a qualified legal adviser as to the best type of power of attorney for you, and the completion and future use of it. Everyone should have something in place in case the unexpected happens to them and horror stories should not scare people away from these documents – some institutions need to give their staff more training, but if you have a legal professional acting for you, you can be sure that they will help you over any confusion.