A recent High Court case, Morris v Morris, has set a new precedent in relation to the legal consequences of assisted dying. Until now, the law of England & Wales stated that where a person is convicted of assisting in the unlawful killing of another person, they cannot inherit property from the deceased person.
In Morris v Morris, the Court decided that although Mr Morris had assisted his wife to attend a clinic in Switzerland to end her own life, he should not lose his right to inherit his wife’s assets for assisting in her death.
Assisted suicide is not yet legal in the UK, although the Assisted Dying for Terminally Ill Adults Bill is currently progressing through Parliament.
Crucially, the Court found Mrs Morris had sufficient mental capacity to make the decision to end her own life. Even under the new Bill, assisted dying would not be legal without mental capacity.
But can anything be done to assist a person who lacks mental capacity to make their own decision? Health & Welfare Lasting Powers of Attorney (HWLPA) allow people to appoint attorneys to make decisions about medical treatment and care; but the HWLPA can only be used when the person has lost mental capacity to decide for themselves.
HWLPAs must be made in advance, whilst the person still has capacity to understand it. Many people making HWLPAs wish to express their preference not to receive medical treatment that would prolong their life, in circumstances where their illness is so severe that there is little or no prospect of recovery to a reasonable quality of life. This is effective up to a point, but the HWLPA cannot be used to actively bring about the person’s death or assist suicide. Any preferences expressed in the HWLPA document, indicating that they would like to be assisted to die, would be struck out by the Office of the Public Guardian on registration of the LPA.
In my view, this is correct. Protecting vulnerable incapacitated people is vital. Otherwise the temptation of avoiding long-term care costs and accelerating inheritance could lead to decisions being made that are not in the person’s best interests. Therefore if the Assisted Dying Bill is enacted, it will change the situation for people who have mental capacity, but the statutory framework of safeguards around incapacitated people must remain in place.
Morris v Morris [2024] EWHC 2554 Ch
Forfeiture Act 1982
Suicide Act 1961