This month, the UK's Assisted Dying Bill was introduced into the House of Lords. It’s still not clear whether or not the Bill will ever become law. However, if it does, it will raise a number of questions about wills, probate and inheritance, says Jemma Hotta, partner at Oury Clark Solicitors.
Firstly, if assisted dying becomes legalised, should an attorney under a Lasting Power of Attorney be able to make decisions about assisted dying? At the moment, when someone (the donor) creates a Lasting Power of Attorney, they can choose whether or not their attorney can make decisions about life-sustaining treatment on their behalf when they no longer have the capacity to do so themselves.
The current Bill only allows those with the mental capacity to make the decision to end their own life. So, we anticipate that attorneys would not be able to make this decision on behalf of a donor even if the attorney had expressly authorised them to do so. This is an important safeguard; however, it will raise questions around the test to be applied by doctors when determining whether an individual has capacity to decide to end their own life.
Some might argue that allowing attorneys to make decisions related to assisted dying would be too risky, as it might cause them to act improperly – and so such decisions shouldn’t be delegated to them. However, preventing attorneys from making such decisions on a donor’s behalf could create its own issues.
For instance, if people are only able to make decisions related to assisted dying when they have the necessary mental capacity, terminally ill people who have lost capacity would not have the option to be provided with assistance to end their life, even if they had made it clear that that is what they would have wanted before they lost capacity.
Legalising assisted dying could also have implications from an inheritance point of view. Under UK law, people cannot inherit from someone they have killed unlawfully. As assisted dying is not currently lawful in the UK, someone who aids another to die would be prevented from inheriting their estate.
Cases in which families have been granted relief from this rule have been rare. The most well-known case in which relief was granted was that of Sarah Ninian in 2019. Mrs Ninian was allowed to inherit her husband’s estate despite having accompanied him to Switzerland to end his life. Mr Ninian was too unwell to travel alone, and the court found that his wife travelled with him out of compassion, so she was not blocked from her inheritance.
Before his death, Mr Ninian ensured that adequate preparations were in place to protect his wife – including a statement of intent and carefully-worded will. If assisted dying were to become legalised, such measures could provide a useful means of preventing disputes over a beneficiary’s right to inherit from an estate belonging to someone whose death they assisted with.
All in all, passing a law on assisted dying could lead to a spike in disputes amongst the beneficiaries of wills or those inheriting through intestacy – so much more clarity would be needed before introducing any such legislative change.
By Jemma Hotta, partner at Oury Clark Solicitors
