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    • 1. What is a living will

      What is a living will

      Living wills have become an increasingly important part of estate planning in South Africa and as such the implications related
      thereto should be fully understood prior to having a living will in place.

      A living will is a declaration which will serve as a patient’s wish to refuse any medical treatment that will allow the patient to be kept
      alive by artificial means. When a patient is no longer able to express a competent view, such as, being in a vegetative state or
      irreversibly unconscious, the living will should generally be complied with.

    • 2. The legal validity of a living will

      • A living will is not a will in the testamentary sense of the word. In South Africa there is presently no law regarding the validity or enforceability of living wills. Therefore, doctors have discretion to
        accept or reject a patient’s living will, and are in no way obliged to comply with the patient’s declaration. However, patients have a
        constitutional right to expect their living will to be honoured, and in this respect, doctors are expected to act in the best interests of the patient.

        According to the Living will Society of South Africa, for a living will to be ethically valid, four conditions must be met:

        2.1 The patient must have issued the declaration when they were aged 18 years or older;
        2.2 There must be certainty regarding whether the patient has the mental capacity to make their own medical decisions at the time of issuing the declaration;

        2.3 A patient may only refuse consent to treatment if they have been fully informed about their condition and proposed treatment;

        2.4 It must be ascertained that the patient did not change his/her mind after issuing the declaration.

  • 3. Guidelines in respect of living wills

    • Since there is presently no law governing the regulation of living wills the guidelines below have been designed to assist doctors
      who have been confronted with living wills:

      3.1 a doctor should generally act in the interests of his/her patients, and should offer to treat and to relieve suffering of his/her patients;

      3.2 all patients have a right to refuse treatment, which right should be respected. This does not imply or justify
      abandonment of the patient. Doctors should offer medical care in accordance with good medical practice. The medical
      care should also be acceptable to the patient and appropriate to the circumstances;

      3.3 a living will, in the absence of contrary evidence, shall be regarded as representing the patient’s expressed wish. It is
      advisable that patients draft their living will in conjunction with medical advice, and further that they discuss specific
      terms of their living will with their doctor;

      3.4 if a living will is specific to a particular set of circumstances it will have no force if these circumstances do not exist.
      Further, if a living will is so general that it applies to all possible events that could arise, it could be viewed as too
      vague to give any definitive direction to the doctor. In either case doctors will have to rely on their professional judgment;

      3.5 it is the responsibility of the patient to ensure that the living will is known to his/her family and to those who may be
      asked to comply with its provisions. Doctors who are aware of the existence of a living will should make all reasonable
      efforts to acquaint themselves with its contents. In the case of emergency, and the living will is not readily available,
      treatment should not be delayed;

      3.6 it is strongly recommended that patients review their living will at regular intervals, and in the event of any required
      amendments the existing living will should rather be destroyed and redrafted;

      3.7 doctors with a conscientious objection to withhold treatment in any circumstances are not obliged to comply with the living
      will, but should advise the patient of their views and offer to step aside or transfer treatment of the patient to another doctor;

      3.8 late discovery of a living will after life-prolonging treatment has been initiated is not sufficient grounds for ignoring it.

      It is important to note that these guidelines do not imply the legalisation of euthanasia and assisted suicide, which remains unlawful in South Africa.

  • 4. Advantages of having a living will in place

    Advantages of having a living will in place
    • As with other risk planning related matters, a living will makes provisions for a medical situation that may transpire in your
      lifetime. For this reason you should have the following considerations in mind when deciding whether to issue a living will:

      4.1 a living will provides a patient with the security of having a voice when he/she is no longer able to competently express
      an opinion;

      4.2 the patient’s family is spared from making life-or-death decisions;

      4.3 a living will allows the patient to have a say in medical procedures as well as his/her decision on organ donation;

      4.4 a living will assists in containing the financial costs of dying as being placed on life support can be extremely expensive;

      4.5 a living will gives you peace of mind.

  • 5. Power of attorney

    • It is important to note that many people have the misconception that having a living will automatically appoints a person to act on
      your behalf in the case of a medical emergency. The matter of giving a power of attorney for a person to act on your behalf in
      anticipation of mental capacity is not the case. The power of attorney becomes invalid the moment the principal of the power of
      attorney (in this case the patient) can no longer exercise their judgment.

      Legal decision making is an ongoing process which requires competence and capacity at the time of making the decision.
      Therefore, a power of attorney cannot be used to act on the patient’s behalf when they no longer have the capacity to do so.
      In the event that a power of attorney has been drawn up and mental incapacity arises later, it is required that an application be
      brought before the court to appoint a curator bonis.

  • 6. Example of a living will

  • 7. Living will vs. testamentary will

    Living will vs testamentary will
    • It is crucial not to confuse a living will with a last will and testament. As stated previously, a living will provides for a person’s medical
      care in the event of such person becoming incapacitated. These two different types of “wills” should be drafted and kept separately
      from each other.

      In contrast, a last will and testament is a written document in which a person disposes of his property after his death. Therefore, it only
      has effect upon the death of the testator, unlike a living will, which is used while the principal of the will is still alive.

      In order for a testamentary will to be valid it must have been executed in accordance with the formalities prescribed by law as
      provided for in Section 2(1)(a) of the Wills Act 7 of 1953. Furthermore, the will must have been made freely and voluntarily,
      with a clear intention of constituting a testamentary document. The principle of “freedom of testation” means that a testator is free to
      leave his/her property to whomever he/she pleases.

      If a deceased person has a valid testamentary will then we say that he died “testate” and that his/her estate will be administered in
      accordance with the provisions of the will.

  • 8. Conclusion

    • Having your medical affairs in order can be just as important as having your estate in order. Prolonging life unnecessarily is highly
      distressing for loved ones, and the medical costs involved can place a financial burden on your family.

      Having a living will which clearly sets out your wishes regarding artificial life-prolonging methods can save your loved ones from
      having to make the life-or-death decision for you, which can be devastating.

      Hi, I’m Kailash Pillay, an attorney from the city of Johannesburg. My passion for the law
      stems from a desire to improve upon the lives of the vulnerable who fall prey to a
      corrupt system.
      I studied at the University of Johannesburg where I obtained my Bachelor of Laws
      degree, the starting point to the long journey of becoming a legal practitioner.
      This profession has taught me to persevere through the complexities of the law and to
      continually develop my skills as a legal professional.