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A living will: Your questions answered

A living will can serve to speak for you when your voice is silenced. 

Before signing a living will, it is important to have full insight into its legal and medical application, and how it can serve to speak for you when your voice is silenced. 

What is a living will?

A living will is a separate, standalone document that provides guidance to your family and medical doctor regarding end-of-life medical care and treatment. In your living will, you can request that medical treatment that would prolong your life be withheld in circumstances where you are in a permanent, vegetative state, irreversibly unconscious or where there is no hope of recovery. In your living will, you can also document your desire to donate your organs and/or tissue.

Who can draft a living will?

Anyone who is 18 years or older and who is of sound mind can draft a living will. The South African Medical Association has stipulated that in order for a person to make a directive in the form of a living will, they must be over the age of medical consent and must be ‘compos mentis’. Unlike in the case of a power of attorney, a living will remains valid even if the declarant subsequently becomes ‘non-compos mentis’. Ideally, your living will should be signed in the presence of two witnesses, neither of whom are family members nor your medical practitioners.

What constitutes a valid living will?

From a legal perspective, the basis of a living will is that of ‘informed consent’ which means that the declarant must be fully aware of all the attendant risks involved. As such, not only must the patient be over the age of medical consent and of sound mind, but he must also be fully informed about their condition and proposed treatment. The medical practitioner must also be satisfied that the declarant did not change his mind after signing the directive.

What is a medical proxy?

When drafting a living will, you can nominate a medical proxy or representative who you trust to speak on your behalf if you are not in a position to do so. Ideally, appoint an alternate medical representative in the event that your primary medical proxy is unable or unwilling to represent you.

How is a living will different from a will?

Your will is a legal document which comes into effect after your death and which dictates how your earthly belongings should be distributed amongst your heirs and beneficiaries. A living will, while not a legally enforceable document, is an expression of how you wish to be cared for medically while you are still alive. They are two totally different documents and serve completely different purposes in your estate planning arsenal.

Is it the same as a power of attorney?

There is a common misconception that a power of attorney automatically provides your loved ones to act on your behalf in the event of a medical emergency, although this is not the case. A general power of attorney is granted by a principal who is of sound mind to an agent who is then mandated to legally transact on his behalf. If the principal becomes mentally incapacitated, or non-compos mentis, the general power of attorney, automatically falls away. A living will, which is limited to the medical treatment and care of the declarant, is totally different from a general power of attorney in that it remains valid even where the declarant is mentally incapacitated, unconscious and unable to communicate for himself.

Where should I keep my living will?

Ideally, you should keep your living will in a separate location to your will. Your living will is intended to be used by your loved ones and medical doctor while you are still alive, so let those closest to you know about its existence. You may want to consider keeping a copy of the document in your bag, wallet or purse.

Is my doctor obliged to comply with my living will?

No, your doctor is not legally obligated to honour your living will. However, the South African Medical Association and the Health Professions Council of SA have both 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, he should advise the patient or his loved ones of his views, and step aside to allow another medical practitioner to care for the patient. 

What are the benefits of a living will?

A living will gives you peace of mind that your choices regarding your end-of-life medical care will be honoured. Many people don’t fear death as much as they do the thought of ongoing pain and suffering where there is no hope of recovery, and this is where a living will can be of benefit. By documenting your wishes, you can also help to avoid arguments amongst your family members and friends as to how you should be treated, bearing in mind that emotions and tensions will inevitably be high. Keeping a person alive artificially and indefinitely where there is no hope of recovery can also place an unnecessary financial burden on one’s family, and making a decision to withdraw life support because of affordability issues is a decision no one wants their loved ones to make.

What happens in the case of an emergency?

In the event of a medical emergency, your medical practitioner may not be aware of the existence of your living will. If he is subsequently made aware of the document, he should make a reasonable effort to understand the wishes of the declarant.

Is a living will the same as euthanasia or assisted suicide?

A living will expresses your desire to die a natural death, free from having one’s life artificially extended by often painful and invasive medical treatment, including but not limited to medication, tube feeding, dialysis or life support. As such, it is not the same as a request for assisted suicide or euthanasia. Assisted suicide is not legal in South Africa and you may not ask your doctor to end your 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.

ADVISOR PROFILE

Gareth Collier

Crue Invest (Pty) Ltd

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