A Living Will is a declaration or an advance directive which sets out a person’s wishes to refuse any or certain medical treatment and care which results in him being artificially kept alive where there is no hope of recovery and the person is not in a position to speak for himself.
Anyone over the age of 18 who is compos mentis at the time of drafting can make a Living Will meaning that the person signing the declaration must be of sound mind and memory, and must be able to appreciate and understand what he is signing. Keep in mind that the declaration will remain valid even if that person subsequently becomes non compos mentis.
A Living Will is different in purpose to a Last Will and Testament in that, whereas a Testamentary Will deals with the distribution of your earthly belongs in the event of your death, your Living Will deals with how you wish to be cared for medically while you are still alive. Also important to bear in mind is that while the drafting of a Testamentary Will is governed largely by the Wills Act, there currently exists no legislation in South Africa which provides validity or enforceability in respect of Living Wills – which means that Living Wills can be considered somewhat contentious documents. As such, it is essential to understand the role that your Living Will plays, its enforceability, and the extent to which your wishes can be expressed therein.
According to guidelines set out by the South African Medical Association (SAMA), a doctor should offer to treat and relieve suffering and should generally act in the best interests of his patient and should offer medical care to their patient in accordance with good medical practice. In the context of a Living Will, these principles will need to be balanced with the patient’s right to refuse medical treatment where there is no hope of recovery and death is inevitable – which is the primary function of a Living Will. While SAMA recognises that a Living Will represents a patient’s expressed wish, they believe that such a document should be drafted in conjunction with medical advice and counselling. This is because it is simply not possible for a person drafting their Living Will to foresee or contemplate all potential medical interventions they may be confronted with in the future, and what decisions these circumstances may give rise to. As such, keep in mind that if you have a Living Will in place, there may be circumstances where the treating doctor or specialist will need to rely on their professional judgement when making decisions, especially where the document is vague or does not address the specific medical condition in which you find yourself. However, according to SAMA’s guidelines, a treating doctor should take the patient’s Living Will into consideration and respect that it reflects the patient’s last wishes in terms of how he would like to be cared for medically if he is unable to speak for himself. SAMA also advises that where a medical practitioner has a conscientious objection to withhold medical treatment should advise the patient of their views and allow another medical practitioner to take over.
While many people tend to use the term Living Will and Advance Healthcare Directive interchangeably, there is a fundamental difference between the two documents. Whereas a Living Will is essentially an instruction to withhold or withdraw life-sustaining medical treatment where a person is found to be in a permanent vegetative state or irreversibly non-responsive, an Advance Healthcare Directive goes a step further by allowing the drafter to appoint a medical proxy who can speak and make decisions on their behalf of the patient. However, the primary goal of both documents remains the same – to allow the patient to express their written desire to avoid aggressive medical intervention and/or be artificially kept alive where death is inevitable.
At what is bound to be a particularly traumatic time, a Living Will or Advance Healthcare Directive can be a blessing for your loved ones who may be unable, or even unwilling, to make decisions regarding your medical treatment. Having a medical proxy to speak on your behalf can also help avoid family arguments and disagreements and can facilitate clearer lines of communication with the treating doctors. That said, it is advisable to think carefully about who is best positioned to act as your medical proxy in the event of tragedy. Firstly, consider appointing a primary medical proxy together with an alternate medical proxy in case the primary proxy is unable or unwilling to act on your behalf when the time comes. Secondly, avoid nominating joint medical proxies as this can result in delays in decision-making and deadlock if the two have differing opinions on how the doctors should proceed.
While you are relatively healthy, it is difficult to contemplate the various medical conditions you may find yourself in, and this can make drafting a Living Will particularly tricky – particularly when it comes to dealing with the nitty gritty of your end-of-life wishes. Further, different circumstances may require different levels and types of interventions, and these can be near impossible to predict. For instance, if you are diagnosed with dementia, you may contemplate a different set of medical interventions than if you were diagnosed with terminal cancer, or if you be left in a vegetative state following a stroke. On the other hand, if you have received a life-limiting diagnosis and have clarity on your prognosis and how the disease is expected to progress, drafting a Living Will or Advance Healthcare Directive might be an easier exercise to undertake. This is because your treating medical practitioners will be able to guide you on what to expect, what treatment options are available, and the types of interventions that can be used to limit pain and suffering. Once you have a full picture of the options available to you, you can document your express wishes in terms of which medical care you wish to use, withdraw, limit, or refuse when the time comes. If you do have a Living Will in place, it is important to review it at least every three years or as and when your personal circumstances change. Death, divorce, diagnosis, and decline are the four Ds that should trigger a review of your Living Will to ensure that it clearly expresses your wishes should the time come when you are not able to speak for yourself.
What is important to keep in mind is that your Living Will cannot include instructions or directives for euthanasia or assisted suicide as this remains illegal in South Africa. Remember, refusal or withdrawal of treatment is not regarded as assisted suicide because limiting treatment allows the disease to take its natural course.
While a Living Will and Advance Healthcare Directive are largely designed to spare your loved ones from making life or death decisions, you can also use these documents to express your wishes with regard to organ donation and brain autopsy in the case of dementia or Alzheimer’s disease which can assist with medical research. In addition, a Living Will can assist in containing the financial costs of dying, keeping in mind that the costs of keeping a patient alive artificially where there is no hope of recovery can place a significant financial burden on the family of the patient which, in turn, can erode the value of the patient’s estate.
If you would like to draft a Living Will or Advance Healthcare Directive, there are a number of sites that provide templates for download and use, including Funeral Guide SA and Dignity South Africa. When drafting your Living Will, be sure to destroy all previous Living Wills or Advance Healthcare Directives, and to let your spouse, partner and loved ones know of its existence and where it is kept. If you’ve nominated a medical proxy, that person must be over the age of 18, and must be someone trust implicitly to carry out your wishes. Ideally, ensure that two witnesses sign your document in your presence and in the presence of each other.
Drafting a Living Will or Advance Healthcare Directive should not be done in isolation, but should be prepared as part of the overall estate planning process to ensure that your loved ones are equipped with knowledge of your express wishes in the event of tragedy and, as a result, can avoid unnecessary financial hardship.
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