How do living wills work?
Living wills relate to your end-of-life wishes while you are still alive.
In a living will, you give instructions in the event of a grievous medical condition, that would render you unable to make or express your own decisions. Living wills are used to state that, should there be no reasonable chance of recovery, you do not wish to be kept alive with artificial life support.
What makes a living will valid?
According to the Living Will Society of South Africa, for a living will to be ethically valid, four conditions must be met:
- The patient must have issued the directives when they were aged 18 or over.
- You must be sure that the patient had the mental capacity to make their own medical decisions at the time of issuing the directives.
- A patient may only refuse consent to treatment if they have been fully informed about their condition and proposed treatment.
- You must be satisfied that the patient did not change his or her mind after issuing the directive.
What does the law say about living wills in South Africa?
The South African Medical Association (SAMA) and the Health Professions Council of South Africa (HPCSA) have both issued guidance. It states that all patients have a right to refuse treatment. The HPCSA is established in terms of Health Professions Act, No. 56 of 1974 to govern the activities of healthcare professionals (*1). Their guidelines also state that patients who have living wills in place have the constitutional right to expect their living wills to be honoured (*2).
However, a living will is predominantly a medical consideration from the view of South African law. It can be ignored by the family and attending doctors if there is a remote chance of recovery. It is generally acceptable to comply with living wills where patients are in a permanent vegetative state. In all other instances, a doctor who is uncertain whether or not to comply may approach the court for clarity.
A living will in South Africa cannot include directives for euthanasia or physician-assisted suicide. This means that you can ask for treatment to be withheld, but you cannot ask a doctor to end your life. (Example: if you develop advanced Alzheimer’s but are otherwise able to continue living without life support.)
Why should I consider having a living will?
Most of us don’t like the idea of our lives being prolonged when there is no reasonable quality of life or hope of recovery. Would you want to remain in a vegetative state indefinitely, being kept alive with artificial life support?
Having a formal document, clearly stating your wishes, can be a gift to family members who would otherwise have to make the difficult decision themselves.
Prolonging life unnecessarily is distressing for loved ones, and the medical costs can place financial stress on them. In some cases, patients have been kept on life support for years because there was no clear directive about their wishes.
As with a last will and testament, it becomes more important the older we get. Anyone over 18 should consider having a living will in place. A living will can also provide clarity on your views regarding organ donation. You can specify that, should you die, your healthy organs can be harvested and donated.
How can I put a living will in place?
We are able to assist you with drafting a living will that will detail the usual clauses. It can also detail any special directives that you might like to include. It is a good idea to have multiple signed copies. Keep one with you, give to key family members and your GP. We will keep one on file with your last will and testament but they remain separate documents.
Contact us if you would like to discuss how to go about getting a living will and a last will and testament drawn up, appointing us as the executor. Fill in our contact form or email us – firstname.lastname@example.org. You can also get in touch with us via our Facebook page.
We look forward to hearing from you.