Living Wills

What is a living will?

Simply put, a living will is a document that sets out a person’s express wishes with regard to decisions made in respect of themselves and/or their bodies, when such person has been declared incapable of giving consent, due to physical and/or mental incapacity.

A person may therefore conclude a living will. This would serve to dictate the exact terms and conditions upon which persons may act on their behalf in the case of mental or physical incapacity to make decisions relating to their own healthcare.

Are living wills valid and enforceable?

The terms and conditions contained in a living will are limited by a dearth in regulatory tools dealing with living wills in South Africa. Existing legislation, to an extent, dictates what a person can and cannot permit and/or refuse when it comes to consenting to medical treatment.

The lack of statutory authority regulating living wills means that they may still be regarded as invalid and unenforceable.

Notwithstanding these uncertainties surrounding living wills in South Africa, the following are common cause:

a) Euthanasia (or assisted suicide) cannot be consented to by any person in a living will.

b) Unless prohibited by legislation, specific medical treatment may be refused.

What are the advantages of concluding a living will?

In considering the difficulties one’s family or friends may face when tasked with making healthcare decisions that may permanently affect the life of the incapacitated person, the advantages of concluding a living will become clear. These may include:

· A living will can speak for you when you may not be able to speak for yourself.

· It can serve to eliminate potential financial burdens on family members and/or one’s estate, with regard to ensuing medical bills.

· It provides clear directives on one’s specific desires regarding healthcare treatments.

· It eliminates the potential for burdensome decisions imposed on family members and loved ones with regards to one’s medical treatment, especially in tragic scenarios.

I want to draft a living will. How should I approach it?

It is advisable to consult with a qualified legal practitioner who can assist with the drafting of your living will.

All the necessary details regarding your medical treatment, the level of comfort during that treatment and the manner in which you wish to be treated are all important considerations when drafting a living will.

It is further advisable that your living will is addressed to all the parties you wish to act in respect thereof. This may include medical practitioners, family members and/or close friends. These parties should also be made aware of the existence of the living will from the date of its first drafting, including any updates and/or amendments thereto.