Financial abuse claims and contests around wills provide important lessons for legislators over the issue of "assisted dying," following the vote in the House of Commons recently in the UK. This article explores what should be learned.

Members of Parliament in the UK recently voted in favour of what is called the “Assisted Dying” Bill. While the legislation is not yet a done deal, the vote certainly took the country into new medical and ethical territory. Needless to say, this is immensely controversial. Such laws have been enacted in countries such as the Netherlands and Canada. 

The are clearly implications for those giving legal advice to families. To that end, we carry this article from Tamasin Perkins (pictured), partner at law firm Charles Russell Speechlys. The editors are pleased to share these views; the usual editorial disclaimers apply. Email tom.burroughes@wealthbriefing.com or amanda.cheesley@clearviewpublishing.com if you wish to comment.

Much of the commentary on the Terminally Ill Adults (End of Life) Bill, known as the “Assisted Dying” Bill, focuses rightly on the test for capacity. If someone is making such an overwhelmingly large decision as to end their own life, there must be unimpeachable safeguards in place to ensure that there is no doubt they understand what they are doing. The Bill, as drafted, contains a thorough process for ascertaining capacity, requiring the opinion of two doctors (one previously independent) and court approval.

Capacity is something lawyers must think about every day; whenever someone makes a significant life decision which might affect their finances. They might be giving away their valuable property, or making a will, or getting married. Each of those decisions has a specific test for capacity under the Mental Capacity Act 2005 (or case law) to ensure that the individual understands the decision. There is a legal framework of protection and a developed court system (the Court of Protection and the Official Solicitor representing their interests) to help them whenever needed. 

But with financial decisions, having capacity is not the end of the story. There are other factors in play which must be considered to make sure that the person making the decision does so freely. There are rules around coercion and improper pressure. There are also principles to make sure that the individual, even though they may have the capacity to make that decision on paper, really knows and approves what they are doing in the moment when they make the decision.  

The draft Bill proposes introducing new criminal offences where a person induces someone else at various stages of the assisted dying process. These offences cover dishonesty, coercion and pressure. But is the ability to identify the commission of an offence after the event a sufficient deterrent to stop the coercion happening in the first place? Especially when the decline of a loved one is itself so much to cope with. When such big decisions are being made there must be no margin for error.  

Perhaps the body of law that exists for challenging wills and gifts should be applied to protect those considering assisted dying. Issues like coercion must be taken as seriously as capacity if the Assisted Dying Bill becomes law, especially in the early days of its implementation when the case law framework that supports our common law legal system is being developed. This is something that we as a society cannot afford to get wrong.

Undue influence or coercion is depressingly common in the arena of contested wills and gifts. Typically, this might manifest as a close family member or carer exploiting the vulnerability of the person that they care for to engineer a benefit for themselves, or a physically dominant or coercively controlling partner forcing their less strong partner down a particular path. Those relationship dynamics will also underpin many situations where the person affected is considering whether to live or die. Money may not be a factor in all cases, but in some the carers, family members and partners surrounding the dying person will also stand to benefit under their will. Assisted dying would accelerate a gift to any financial predator.

What will be the test for coercion in the context of a decision to die? The English legal system applies different tests for undue influence when a person is making a will and when they are deciding to make a lifetime gift. When making a will, a high hurdle must be overcome to show undue influence, requiring proof on the balance of probabilities that there was coercion or influence to such an extent that the person making the will’s free will was overborne. Where there is a lifetime gift, the test is more nuanced. There can be actual undue influence, where there have been overt acts of improper pressure, or there can be presumed undue influence where the relationship between two people is such that one person is simply expected to have had influence over the other.  

For there to be presumed undue influence there must be (a) a transaction that calls for an explanation and (b) proof that the person concerned placed trust and confidence in the other party. Those two things do not prove that undue influence took place but shift the burden of proof so that the party who benefits from the transaction must positively show that there was no undue influence. Aspects of that test may be more helpful in the context of assisted dying than the blunter test for wills.

Will these kinds of factors be considered when a person is deciding to die? Who will consider them? Is it right that a medical professional must consider coercion when this is likely to be outside of or tangential to their expertise? Will there be dialogue between that medical professional and the person’s legal and professional advisors? If the person concerned is updating their will at the same time, should the evidence of their solicitor be built into the approval of the person’s decision? It would provide better protection to include an assessment of influence into the draft legislation than just rely on policing offences after they have occurred. In the same way as with lifetime gifts, the starting point could be a presumption of influence in certain situations unless shown otherwise. 

Coercion can be very difficult to spot as a legal professional (and for medical professionals too). People are on their best behaviour in their lawyer’s office and financial predators can appear charming – the real influence occurs behind closed doors. A lawyer might perceive a general feeling of menace or discomfort in someone’s body language, or a noticeable disparity between the physical presence of one partner and the frailty and vulnerability of the other, or a too close involvement in the decision-making process, or a sudden and inexplicable change of heart. But it is hard to translate the clues lawyers pick up on instinctively into something that is tangible enough to be relied on elsewhere. 

Coercion can be insidious; coercively controlling relationships can exist without the person’s loved ones knowing that anything is wrong and often after carefully isolating that person. Threats aren’t always straightforward either – the person exercising coercion might threaten self-harm or to remove themselves from the other person’s life in a way that is enough to overbear them, especially when they are already elderly, severely unwell or vulnerable.

At the heart of it, the coercive person is also the person they love most, especially where there is a parent and child relationship. In the UK, the victims of “mercy-killings” are disproportionately women and in Switzerland, where assisted dying has been legalised, those who have chosen to use it are again disproportionately women. Coercion can affect everyone, whenever there is a power imbalance there can be undue influence, but it seems likely that women will be particularly at risk from coercion around assisted dying.

In relation to will challenges, a person must not only have had capacity to make a will and to be free from coercion but must have known and approved they were making a will. This principle has been used to protect individuals suffering from such extreme anxiety or panic attacks that, in a stressful environment outside of the home (such as a law firm’s offices), they are not able to really know what they were doing or make a valid decision about their will. It is easy to imagine this situation arising in a clinical setting where anxiety and distress run high but where capacity is not in question (especially if the test for capacity is carried out at home or at a different, more peaceful, time).  

The test for undue influence over lifetime gifts is useful because it starts from a point of suspicion rather than having to establish and evidence grounds for doubt in the first place. Similarly, the requirement for knowledge and approval for a particular decision, as well as capacity to make it, provides an extra level of protection when someone makes a will. Should similar protections be built into the Assisted Dying Bill? This is surely something Parliament would better address now [rather] than risk future abuse.