“Hoping for the best, prepared for the worst, and unsurprised by anything in between”: the case for signing a living will today

What is a living will?

The living will (also known as an advance healthcare directive) is a document which sets out your wishes for medical care, and directs your medical caregivers in the event that you become permanently incapacitated, with no reasonable prospect of recovery, and unable to make your own decisions.

It is generally used to record a wish to refuse medical treatment that keeps one alive by artificial means, when one faces a hopeless prognosis and is either suffering great distress or left incapable of rational existence.

The living will can direct that any medication (including powerful painkillers) that eases suffering, should be provided, even if such medication hastens one’s death. In short, the living will aims to prevent the fruitless prolonging of death, once medical treatment can no longer meaningfully extend life.

How is a living will made?

A living will should be in writing, and one can be made by any adult of full mental capacity. It is wise to sign the living will similarly to a last will and testament – dated and signed before two independent witnesses aged over 16 years, who also sign the document, each signatory signing in the presence of each other signatory. The witnesses should ideally exclude your next of kin, your doctor, and your heirs in terms of your will, so that there is no possible conflict of interest.

Should a living will form part of your last will and testament?

The living will has an entirely separate function to a last will and testament, and should stand as a separate document in its own right. Families will generally consult a last will only after a death, by which time the medical directives are no longer useful. Living wills can be registered free of charge, along with your last will, with the online SA Registry of Wills and Testaments (www.sarwt.org) , for ease of location when needed.

Is a general power of attorney a better option?

A living will must be distinguished from a general power of attorney (POA). While a POA enables you to appoint another person to exercise your legal rights on your behalf and in your stead, it is only valid for so long as you are yourself mentally capable. Once your mental capacity is compromised, the power of attorney becomes void. A living will prepared before you need it, is a simple, cost-effective route to convey your medical wishes when you are no longer able to communicate. A living will signed while you are of full mental capacity, remains valid even if you lose mental capacity thereafter.

Must my doctors respect my living will?

There is not yet a specific law in South Africa which renders living wills legally binding, but in practice they are to be respected.

The South African Medical Association (SAMA) has issued guidelines for the handling of living wills by South African doctors. SAMA advises its members to respect and uphold a living will as embodying the patient’s expressed wishes, unless there is evidence to the contrary. It counsels patients to ensure that their family members and treating doctors are aware of the existence of their living will and where it can be located, or preferably to lodge copies with their family and doctors. If the living will document is not immediately available, the doctor may treat the patient and should not withhold treatment pending discovery of the document. Treatment can be halted once a document refusing such treatment has been found. Doctors who have moral objections to withholding treatment, should volunteer a referral to another doctor, as the patient has the right to refuse treatment.

What about my loved ones?

When a patient is incapacitated and unable to give directions as to medical treatment, their doctors will look to their next of kin for consent to a specific course of treatment. A living will relieves loved ones of some of the emotional and psychological burden of making end-of-life decisions on behalf of their incapacitated family member. Such direction is particularly useful where there may be disagreement as to the best course of action, sowing conflict among loved ones and leading to guilt and recriminations.

If you would like to draw and sign a living will, contact us at camilla@roseattorneys.co.za or 074 697 2048.