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What is a Living Will?
A living will is a directive that tells doctors what your personal wishes are about end-of-life medical care. It expresses how a person who is physically (or mentally) incapacitated wishes to be treated in certain medical situations.
A living will becomes effective once a doctor decides that a person is incapacitated and unable to communicate his or her decisions regarding life-sustaining treatment. In a living will, the person may state, among other things, his or her wishes regarding cardiopulmonary resuscitation, artificial and/or mechanical life support and tube feeding.
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Who needs to be involved?
If you become incapacitated, your living will only be effective if those who are treating you are aware of its existence. It should be accessible, so it’s advisable to inform your family of the living will’s location and give them copies. It is also wise to regularly give medical practitioners who treat you, copies of the living will. It is advisable to get assistance from a professional such as an attorney when drafting your living will. In practice, it must be signed by the individual and two competent witnesses present at the same time.
Why is it important to have a living will?
• Our right to life is closely tied to our right to dignity, entitling us to a dignified death. A living will allows an individual to retain their dignity by giving them a voice when they cannot speak for themselves.
A living will provides invaluable guidance to family members and medical personnel if a person cannot express his/her wishes. In the event you do not have a living will, doctors/hospitals may decide they are legally obligated to perform certain procedures that you would not desire.
Having a living will in place eliminates any emotional stress your loved ones would suffer when called upon to make life-or-death decisions. If your spouse, adult child or another relative is called upon to make a decision about your care, he/she will find it helpful if you have expressed your wishes in a living will.
A living will tells others what you want to happen in the event you are unable to make decisions about your own end-of-life treatment. Without a document expressing those wishes, family members and doctors are left to guess what a seriously ill person would prefer in terms of treatment. They may end up in painful disputes, which occasionally make it all the way to a court. Being on life-support, especially when there is no reasonable prospect of recovery, is incredibly expensive. The financial burden will be alleviated if there is a living will in place.
Requirements for a valid living will
The validity of a living will is a contentious issue in South Africa. The National Health Act 61 of 2003 (hereinafter referred to as the National Health Act) affirms a person’s right to refuse treatment, even if it may result in the shortening of his/her life. The South African Medical Association has stipulated that in order for a person to have a living will, they must be over the age of medical consent and of sound mind. Unlike a power of attorney, a living will remains
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valid even if the signatory later becomes of unsound mind.
Status of a living will in SA
Living wills are currently not legally recognised in South African law. Doctors with a conscientious objection to withholding treatment are not obliged to comply with a directive. In such a case, the attending doctor should advise the patient of their views and offer to step aside or transfer treatment and management of the patient’s care to another medical practitioner. Doctors are, however, advised to approach living wills with considerable circumspection and obtain advice from the South African Medical Association if necessary.
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Parliament is currently considering the implementation of the National Health Amendment Bill which intends to amend the National Health Care Act, so that advanced health care directives such as the living will and the durable power of attorney for healthcare are legally recognised.
In light of the current pandemic, it has never been more important to have a living will in place. If you are an older person or someone with underlying health conditions, it’s particularly crucial that your wishes regarding end-of-life treatment are recorded.
Source:
Margaret Mary Mccullough
Email: margaretm@jleslie.co.za
Tel: 033 845 9700
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