Putting together a living will

14 Oct 2022

Determine your end-of-life care

We show you how to draft a living will or an advance directive that will bring peace of mind to you and your loved ones. It explains what kind of medical care you want to receive when you cannot speak for yourself.

What is a living will?

A living will is an advance directive representing your wishes to refuse any medical treatment or attention in the form of being kept alive by artificial means. It is a guide for your family and doctors if your medical condition is at a stage where you are unlikely to recover and are not able to make any decisions yourself, for example, being in a vegetative state, terminally ill or irreversibly unconscious. A living will can also contain directives for personal wishes like organ donation.

Although they are not recognised as legally enforceable instructions in South African law, they are ethically acceptable. The Health Professions Act, 56 of 1974 states that patients who have living wills in place have the constitutional right to expect their living wills to be honoured.

What is the difference between a living will and a last will and testament?

Your last will and testament deals with how your property and assets are dealt with AFTER your death.

Five reasons you need a living will

• A living will can speak for you when you cannot.
• A living will spares your family from having to make life-or-death decisions.
• If you intend to donate your organs, a living will makes it very clear.
• A living will can prevent devastating medical bills falling on your family to keep you alive when there is no chance of recovery.
• A living will brings you peace of mind in knowing that in the event of a tragedy you know how it will be handled

What is required for a valid living will?

According to the Living Will Society of South Africa, four criteria have to be met for a living will to be ethically valid:

• At the time of issuing the directive, the patient must be 18 years or older.
• At the time of issuing the directive, the patient must have the mental capacity to make his/her own medical decisions.
• A patient can only refuse treatment if he/she has been fully informed about a medical condition or proposed treatment.
• One must be satisfied that the patient did not change his/her mind after issuing the directive.

Misconceptions surrounding living wills

A living will is not assisted suicide, which is illegal in South Africa. It cannot contain any directives to end your life. It can request that specific treatment be withheld or withdrawn, but you cannot ask a doctor to end your life.

A living will does not automatically appoint a person to act on your behalf in the case of a medical emergency. A proxy directive fills this role, meaning that a friend or relative can act under power of attorney to make healthcare decisions on your behalf if you no longer have the capacity to do so.

How to draw up a living will

It is easy to draw up yourself or with the help of a lawyer. Give a copy to your family and to your medical practitioner. It is important to review your living will regularly and if there are any changes, to get rid of the old copies and supply your family and your GP with the updated version.

With Legal&Tax you’re not alone

Legal&Tax is your companion. Our experts can help you plan your medical directive so if you become incapacitated, your document will state your wishes for you. Contact us for more information.

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Article sourced from Legal&Tax.

See also:

• Unsigned last will and testament
• Curator bonis vs curator ad litem
• Is your estate in order?
• The inevitability of death and why you should plan for it

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)