A Living Will, also known as an advance directive, is a document that outlines a person’s wishes regarding medical treatment in situations where they can no longer communicate for themselves. It allows individuals to refuse certain life-sustaining interventions if there is no hope of recovery. By setting clear instructions, a Living Will ensures that their preferences are respected and relieves loved ones of the burden of making difficult decisions in critical circumstances. Understanding this document is essential for personal and family peace of mind.
Any individual aged 18 or older who is of sound mind at the time of drafting can create a Living Will. This means the person must fully understand and appreciate what they are signing. Importantly, once signed, the Living Will remains legally valid even if the person later becomes unable to make sound decisions or loses mental capacity. This ensures that their wishes are upheld in circumstances where they can no longer communicate.
A Living Will serves a different purpose from a Last Will and Testament. While a Testamentary Will outlines the distribution of your assets after your death, a Living Will specifies your preferences for medical care while you are alive but unable to communicate. Unlike Testamentary Wills, which are governed by the Wills Act, there is no specific legislation in South Africa validating Living Wills. This lack of legal clarity can make them contentious. Therefore, understanding your Living Will’s purpose, its enforceability, and how effectively it conveys your wishes is crucial when drafting this important document.
The South African Medical Association (SAMA) advises that doctors act in their patients’ best interests by providing treatment and alleviating suffering, adhering to established good medical practice. In the context of a Living Will, these principles must be balanced with the patient’s right to refuse medical treatment when there is no hope of recovery, and death is inevitable—key purposes of a Living Will. SAMA acknowledges that a Living Will reflects a patient’s expressed wishes but emphasizes that it should be drafted with medical guidance and counselling. This approach is crucial, as it is impossible for individuals to predict every potential medical scenario they may face or fully grasp the implications of certain treatments. Medical input ensures that the Living Will aligns with the patient’s best interests and informed preferences.
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 terms 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.
In difficult and traumatic circumstances, a Living Will or Advance Healthcare Directive can ease the burden on loved ones who might struggle or feel conflicted about making medical decisions on your behalf. Appointing a medical proxy ensures someone trusted can communicate your wishes, reducing the risk of family disagreements and improving coordination with healthcare providers. When choosing a medical proxy, consider appointing both a primary proxy and an alternate to ensure decisions are covered if the primary is unavailable. Avoid appointing joint medical proxies, as differing opinions between them can cause delays or deadlock in critical moments. Careful thought about who will act in this role is essential to ensure your wishes are respected during a difficult time.
While in good health, it is often difficult to imagine the various medical conditions that could arise, making the process of drafting a Living Will challenging—especially when it comes to specifying your end-of-life preferences. Different circumstances can call for different levels and types of medical interventions, and predicting these scenarios can be almost impossible. For example, a diagnosis of dementia might prompt a different set of considerations than terminal cancer or a vegetative state following a stroke.
However, when facing a life-limiting diagnosis with a clear prognosis and understanding of how the disease will progress, creating a Living Will or Advance Healthcare Directive may be more straightforward. In such cases, medical professionals can guide you through treatment options and available interventions for pain relief and end-of-life care. This allows you to express your wishes clearly regarding which treatments to continue, limit, or refuse. It is important, however, to periodically review your Living Will, ideally every three years or whenever your personal circumstances change. Major life events—such as death, divorce, a diagnosis, or physical decline—should prompt a review to ensure your Living Will remains an accurate reflection of your wishes and can guide decision-making when you are no longer able to voice them.
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.
A Living Will and Advance Healthcare Directive not only spares loved ones from making critical decisions but can also express your wishes regarding organ donation and brain autopsy, particularly in cases of dementia or Alzheimer’s disease, contributing to medical research. Additionally, these documents help manage the financial burden of end-of-life care. Prolonged, artificial life support when recovery is impossible can impose significant costs, potentially depleting the patient’s estate. A Living Will can, therefore, help limit unnecessary financial strain on the patient’s family and preserve the value of the 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.
Creating a Living Will or Advance Healthcare Directive should be integrated into your broader estate planning. By doing so, you ensure your loved ones are aware of your wishes in the event of a tragedy, helping them avoid unnecessary emotional and financial strain. This approach ensures that both your healthcare preferences and financial interests are properly addressed.
Have a wonderful day.
Sue
