A living will: Saving your loved ones more than heartache

Many of us have intentions of signing a Living Will but never get around to it. Usually, it takes a medical emergency close to home for the reminder to find its way back on our ‘to-do’ list. While technically not a financial solution, a Living Will can play an important role in curtailing mounting medical costs incurred trying to keep a person alive when there is no chance of recovery – thereby reducing the financial burden on the loved ones left behind.

In this article, we explore the nature of a Living Will, the requirements for validity, and how it practically works in the event of a medical tragedy. Firstly, a Living Will is a standalone document that is intended to provide guidance to your medical practitioner and loved ones regarding end-of-life medical care if you are not able to communicate or express your wishes. It is important to note that a Living Will is completely different from your last will and testament in that the former expresses your wishes in respect of medical treatment while you are still alive, while the latter documents your wishes for the distribution of your estate following your death. It is further important to note that a general power of attorney does not serve the same function as a Living Will. This is because a power of attorney falls away as soon as the principal is no longer capable of authorising someone to act on their behalf, whereas a Living Will remains valid even if the declarant is non compos mentis.

As such, a Living Will can be used to express your desire to die a natural death without being kept artificially alive by often painful and invasive medical treatment including (but not limited to) medication, tube feeding, dialysis or life support. It can also be used to express your wishes in terms of organ and tissue donation. Contrary to the belief of some, a Living Will is not the same as a request for assisted suicide or euthanasia, keeping in mind that assisted suicide is not legal in this country in that a person cannot ask their medical practitioner to terminate their life. A Living Will merely requests that your medical doctor not artificially keep you alive where there is no chance of recovery and where, without medical intervention, death would be inevitable.

Anyone over the age of medical consent and who is of sound mind can draft a Living Will and ideally, the document should be signed in the presence of two witnesses, neither of whom are family members nor your medical practitioners. Remember, the basis of a Living Will is that of informed consent, meaning that the person writing the will must be fully aware of all the potential risks involved. This means that the declarant must be over the age of medical consent, of sound mind, and must be fully informed about their condition and proposed treatment. Further, the attending medical practitioner must be satisfied that the declarant did not change his/her mind after signing the directive.

It is possible for the declarant to nominate a medical proxy or representative to speak on their behalf if they are unable to do so, such as if the declarant is in a vegetative state or unconscious. It may be advisable to appoint an alternate medical representative in the event that the primary medical proxy is unable or unwilling to be representative. Because a Living Will is not a legally enforceable document, it is important to bear in mind that your medical practitioner is not legally obligated to honour your wishes. However, both the South African Medical Association and the Health Professions Council of SA have issued guidelines in this regard. Their guidelines state that a patient’s right to refuse treatment should be respected, and that patients with Living Wills in place have the constitutional right to expect their wishes to be honoured. As such, doctors will have to rely on their professional judgement when determining the applicability of a Living Will in a particular situation. If a doctor has a conscientious objection to withholding treatment, it is preferable that he/she advise the patient or the loved ones of his/her views, and step aside to allow another medical practitioner to care for the patient.

One of the main benefits of a Living Will is that it provides peace of mind that your choices regarding end-of-life medical care will be honoured. Many people fear dying less than they do the thought of ongoing pain and/or suffering where there is no hope of recovery, or being left in a permanent, vegetative state where death is inevitable. Another benefit of having a Living Will in place is that it can alleviate the burden on your loved ones who would otherwise be left to make decisions without insight into your express wishes. By documenting your wishes and nominating a medical proxy, you can help to avoid arguments amongst your family members and friends regarding your end-of-life medical treatment, bearing in mind that emotions and tensions will inevitably be high. Keeping a person artificially and indefinitely alive where there is no hope of recovery can place an enormous financial burden on the loved ones, and making a decision to withdraw life support due to lack of affordability can be a devastating position to find oneself in.

If you decide to draft a Living Will, it is advisable to let your medical practitioner know of its existence in advance. Remember, in the case of a medical emergency, your medical practitioner would no doubt prefer to know of its existence and who your preferred spokesperson/proxy is as this may have bearing on the treatment that he/she provides. In addition, it is important to let your spouse, partner or loved one know that you have signed a Living Will and where it is located. The nature of most medical emergencies are such that medical practitioners need to respond quickly, be decisive, and make decisions in the best interests of their patients – and if their patient is in a non-communicative state, they will want to know about the existence of a Living Will and medical proxy. As such, you may want to consider keeping a copy of the document in your bag, wallet or purse.

The absence of a Living Will can burden your loved ones with unthinkable decisions and financial hardship, so consider putting your wishes in writing as a guide for them should a medical emergency arise.

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