While you are healthy, mentally stable and physically mobile, it may be difficult to conceive a time when you will not be able to speak for yourself. Whether through injury, degenerative disease or the sudden onset of illness, many people, especially as they age, find themselves in a position where they are no longer able to look after their personal affairs or make decisions regarding their medical treatment. Thankfully, South African legislation makes provision for a number of mechanisms which give effect to our voices when we are unwittingly silenced. In order to enhance the efficacy of these various mechanisms, it is important to unpack and understand the tools that we have at our disposable before it’s too late.
The Living Will
Unlike a Last Will & Testament which is designed to stipulate certain directives after your death, a Living Will’s purpose is to give expression to your end-of-life wishes while you are still alive. Through a Living Will, one can issue certain instructions in the event of a serious medical condition that would render you unable to make or express your own wishes. In terms of a Living Will, one is able to provide one’s family members and doctors with advanced healthcare directives which will prohibit them from keeping you alive through artificial life support. The basis of a Living Will is to recognise that in the event of a terminal illness, or where there is no reasonable chance of recovery, the employment of artificial means to sustain life is pointless and only serves to unnecessarily prolong the distress for all concerned. The intent behind the Living Will is to request that treatment be withheld if there is no reasonable chance of recovery.
Benefits: A Living Will is that it relieves your family and loved ones of having to make decisions regarding life support.
Disadvantages: Your loved ones need to know about your Living Will while you are still alive, otherwise it will be ineffective.
Costs: There are no costs involved in preparing a Living Will.
In South Africa, organ donation is considered a gift of life as one person can help save up to seven lives. Anyone under the age of 70 who is in good health (in other words has no sign of cancer, diabetes, hepatitis B or infectious diseases such as HIV/Aids) is able to become a donor, although anyone younger than 18 years will require parental permission. Encouragingly, most religions support organ and tissue donation as it is consistent with the preservation of life. In order to ensure that your wishes are adhered to, it is important to have written evidence of your desire to donate your organs.
Benefits: Through your death, you are able to give new life to seven other people.
Disadvantages: Your loved ones must know about your desire to be an organ donor at the time of death in order for your organs to be harvested.
Costs: There are no costs to joining the Organ Donation Foundation.
Power of Attorney
A power of attorney is a formal document by which a person (the principal) authorises another (the agent) to conclude juristic acts on his behalf. By signing a power of attorney, the principal indicates to third parties that he will be bound by the acts performed by his agent. However, in terms of our law, an agent cannot do that which the principal has no capacity to do himself. This causes a major problem in situations where, for instance, an older person who has authorised an agent to act on his behalf starts suffering from diminished capacity through diseases such as Alzheimer’s or dementia. In terms of our common law, when a principal has diminished mental capacity, the power of attorney automatically lapses. This is most definitely an area of our law that needs to be reviewed as it often results in situations where elderly people with diminished mental capacity have no one to look after their personal affairs. The only alternatives in these situations would be to apply to the courts for the appointment of an administrator or a curator. This not only involves costs and time, but also makes the person’s state of health and financial affairs public, which is not always ideal.
Benefits: It allows the ill, aged and physically impaired to appoint someone to look after their affairs.
Disadvantages: It lapses when the principal becomes mentally impaired.
Costs: Power of attorney templates are freely available, although attorneys will charge a fee for drafting a POA.
The appointment of a curator is effective in most instances where a person is unable to look after their own affairs, for whatever reason. A curator essentially steps into the shoes of the patient and takes control of their assets and expenditure. The appointment of a curator is made through a high court application, and must be supported by two medical reports – one of which must be from a psychiatrist. Once the curator has been appointed, he is responsible for submitting annual statements to the Master and ensuring that all transactions are transparent. However, the reality is that the appointment of a curator is an expensive exercise and only caters for those with a high net worth.
Benefits: It allows the those who are mentally and/or physically impaired to appoint someone to look after their affairs.
Disadvantages: It is expensive and does not cater for those with modest assets.
Costs: It costs between R40 000 and R50 000 per application, and the curator earns an annual fee of 6% on gross revenue accrued from dividends, pension, interest and rental.
On the other hand, the appointment of an administrator to one’s estate is a relatively low-cost exercise, but is not suitable to all circumstances. The appointment of an administrator is only permissible in instances where a person is suffering from a mental illness or profound intellectual disability. In other words, it does not cater for those who suffer from physical disability, serious illness (such as terminal cancer, MND, etc) or old age. For these people, the only avenue is curatorship, which may not always be financially possible.
Benefits: It is relatively inexpensive and the process is efficient.
Disadvantages: It only applies to cases involving mental or intellectual impairment, and does not help those who are physically impaired, frail or chronically ill.
Costs: The costs begin at about R2 500.
Scientific and medical breakthroughs abound, many of which have resulted in our bodies outperforming our minds – especially as we age. Our health (both mental and physical) is a gift that we need to treasure while we still have it, and that involves making provision for a time when we may no longer have our full health. Whether through gifting our organs, sparing our loved ones difficult decisions in the event of tragedy, or appointing a trusted person to look after your affairs when you can’t, make sure you have a voice when yours is silenced.
Have a super day!