What is a Living Will? Do you need it? How does it operate in South Africa?

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Speaking to quite a few people over the age of 40 years, it appeared that some heard of a “living will”, but didn’t have sufficient information, while some have not heard of it at all.

So what is a “Living Will”? Also referred to as a directive, a living will is a document that gives the power to another person to enforce medical decisions on your behalf in the event where you are unable to communicate your medical decision.

As an example, you end up in hospital and are kept alive with a breathing machine or any other life-sustaining treatments. You are unable to communicate your medical wishes, so your living will can assign power to another person who gives effect to your wishes. Your living will can therefore instruct that your life-sustaining device be left active for three months, where after it must be switched off, or that medical staff are not allowed to resuscitate you (DNR).

You therefore make the choices about life support or similar medical treatment if you become incapacitated and not able to do so. A living will therefore prevents confusion about your healthcare and it eliminates disagreements, confusion and stress from family who needs to make such decisions. In the absence of a living will, if there are any disagreements about your medical treatment, the medical practitioner or the court will most probably intervene. From the aforementioned it is therefore something that requires careful consideration, while you are still of sound-mind.

At the time of writing this post there are no legislation in South Africa that deals with living wills, nor do we have Court decisions that deal with it. This however does not mean it is not an important document. In certain circumstances you are allowed to refuse medical treatment, however the living will comes into operation when you are unable or incapacitated to make such a decision. What this means is that you make the decision prior to your incapacity. You should however note that a specific law, such as the Health Professions Act, No. 56 of 1974, may take precedence in terms of certain medical treatments or decisions. In these cases you cannot provide a contradictory provision in your living will and a medical doctor must act according to the law. For example, you cannot stipulate in a living will that you want to be euthanised.

What are the other legalities concerned with living wills? At this point it should be noted that a living will is not a general “Power of Attorney” given to another person. The living will should be clear as to who may exercise this power specifically to you medical treatment. It is therefore important to understand how a “Power of Attorney” operate, versus for example, the appointment of a curator bonis. A living will should not just be legally valid, but it should also be ethically valid.

Although the “Living Will Society of South Africa” no longer exists, they prescribed that for a living will to be ethically valid the following conditions must be met at the time of making the living will:

  • The patient must have issued the directives when he/she was already a major and had the requisite mental capacity to make medical decisions.
  • The patient must not have been in any mental distress.
  • The patient must not have been influenced or put under pressure to sign the living will.
  • The patient must have understood that the living will applies to all applicable future situations and circumstances.
  • The patient and the person to whom such power is given must have been fully informed of the consequences.

As previously mentioned, there are no legislation pertaining to living wills and we therefore submit that other legalities and requirements could be derived from normal “wills or testaments”. For example, the living will

  • must be in writing.
  • must be signed at the end of it in such a manner that it would be difficult to alter by another person.
  • must be signed by at least two witnesses.
  • must be signed on each page by both the patient and and by the witnesses.

These are just a few prescriptions that we deem important in the absence of legislation or Court direction. It is better to rather be safe than sorry!

The one question that may come to mind is whether a living will can be cancelled? This question raises even more questions, like who is allowed to cancel a living will and if allowed at what time should it be cancelled? For example, if a curator bonis is appointed by the court, does the curator bonus have the power to cancel or overrule the living will? We will address these question in another blog post, but it is important to be aware of the possible limitations and legal consequences of a living will. Due to the latter we regard it of utmost importance that South Africa is in need of legislation or Court guidance pertaining to living wills.

A final point of note that we think you should be aware of – We advise that your will or testament should be separate from your living will. Why is this important? Although both documents are drawn up while you are still alive, the time when they become active differs. In the case of a living will, it becomes active while you are still alive, but do not have the capacity to make or communicate medical decisions or wishes. In the case of a will and testament, it only activates after your death. This is an important point to note, especially for the living will. The living will should therefore be accessible before death, ie. copy provided to person who is given medical decision-making powers, or doctor, and so forth. Another example why separation might be important is the condition that a person who signs a will and testament as a witness may not be a beneficiary of that will and testament. If the will and testament is not separate from the living will, this may result in a dispute should the person who is given power in the living will is also a beneficiary of the will and testament.

From this article, it should be clear that we recommend having a legally and ethically valid living will. At the same time we do not advise anyone to simply draft a living will, without discussing it with someone who has the requisite experience. It should be clear that drafting a living will to express your wishes can end up being invalidated and therein not give effect to your wishes. Our team of experienced legal advisors offer comprehensive advice on the drafting of legally and ethically sound Living Wills to ensure your peace of mind and that effect is given to your wishes, when you are incapable of doing it.