A living will is for the dying

Your last will and testament documents your wishes should you pass away. So then, what is a living will?

In layman’s terms, a will is a legal document detailing what must happen to your estate at the time of your passing and also describes your last wishes. A living will, on the other hand, provides for when you are still alive but are incapacitated and unable to communicate your wishes. It is an advance directive documenting your wishes surrounding medical treatment while you are still alive but not able to make these decisions for yourself – for example, if you are in a coma and are on life support.

Your living will is literally a one-page document that is separate from your will, that communicates your preferences for end-of-life treatment when you are unable to.

End-of-life wishes are never an easy topic to discuss. This is something that should be done sooner rather than later though because, as John Lennon so famously put it, life happens while you’re busy making other plans. Documenting what your wishes are (should you remain in a state of unconsciousness for whatever reason) is the right thing to do. You wouldn’t want any uncertainty adding to an already trying situation for your family.

When should your loved ones switch off the machines and what does this entail?

In a living will, you can also request that the treating medical professional or facility and/or carer administer palliative or comfort care. This means that you can ask for the adequate or necessary medication to alleviate your pain or suffering, even though it might bring about natural death sooner as a secondary consequence.

Should you ever be in a critical state, such as being in a coma or on life support, it places huge stress on your loved ones.  The uncertainty of the situation, coupled with the weight of difficult decisions that will need to be made regarding your medical care, could take a toll on everyone involved.

Having a living will in place will make this situation a bit more bearable, as it will provide clear guidance on your wishes for your medical treatment.

This will alleviate some of the burden on those you leave behind, as they can rest assured that they are making decisions in accordance with your wishes. While it can never fully eliminate the stress and pain that comes with such a situation, having a living will can provide some measure of comfort and peace of mind.

Who may have a living will and what is required?

In South Africa, anyone who is 18 years or older is entitled to a living will. Such a person must be of sound mind when signing the living will and may not be coerced or forced into signing it. It must be signed in ink by the maker thereof and two competent witnesses in one another’s presence. A competent witness must be 14 years or older and, at the time of witnessing a living will, is competent to give evidence in a court of law. A spouse, partner or relative by blood or adoption cannot sign as a witness.

If you’ve drawn up a living will, it is your responsibility to let your family, friends, or medical practitioner know that you have one and where they can find it.

What would be classified as potentially life-sustaining medical treatment or procedures?

• artificial nutrition or hydration.
• dialysis.
• any medication or drug, including antibiotics, administered through any method, including an IV tube.
• life support of any kind.
• authorising any attending medical professional and/or medical facility and/or other carer to administer palliative or comfort care, and the necessary medication to alleviate your pain and suffering, even though it might hasten your natural death as a result.

The doctor’s duties

Before executing the directives set out in a living will, the treating medical doctor must have confirmed that the maker of the will has an incurable and terminal medical condition and is unable to make decisions about their treatment or communicate these decisions, or is in a permanent vegetative state, or is completely and irreversibly unconscious.

The doctor also needs to have confirmed the authenticity of the living will, in so far as reasonably possible, and where possible, inform the patient’s spouse or partner of the content of the living will. In the absence of the patient’s spouse or partner, their parent/s, grandparent/s, an adult child, or a sibling (in that specific order) need to be notified. 

Is your doctor obligated to adhere to the stipulations in your living will?

Contrary to what many may believe to be true, medical doctors in South Africa are not obligated to comply with the directives in a living will.

Medical professionals might be hesitant to adhere to certain requests in a living will due to having sworn the Hippocratic Oath where they undertake, among others, to do everything they can to ensure the safety and well-being of all persons. Your doctor could even opt to step aside and let the treatment be done by another physician.

Legalising the living will in South Africa

According to Ken Newport, national manager: succession planning at Capital Legacy, the National Health Amendment Bill, 2019, has to be tabled in parliament for a second reading. If approved, signed by the president, and published in the Gazette, it will make a living will a legal and binding document in South Africa. It would also ensure that a living will may not be overridden by any other person.

Ken adds that a living will does not disqualify emergency care until a person’s condition can be established and the application of a living will can be determined.

It is important to note that, until signed into law, a living will can only be seen as a request to a medical doctor since euthanasia and physician-assisted suicide are currently still illegal in South Africa.

Remember to update your living will if you ever change your view on the subject and to destroy all previous versions.

How to revoke or change a living will

You may revoke or change your living will at any time through:

• a signed and dated letter of revocation.
• physically destroying it and any copies thereof.
• an oral expression of your intent to revoke or change it. 
• the means of a later executed living will which is materially different from the former document.

 Conclusion

Although being referred to as a will, a living will is not yet a legally binding document in South Africa. It is more of a request than a legal instruction. It is, however, important that your living will is easily accessible, and that your family is informed of its location.

Capital Legacy, the leading wills, and estates specialists with nearly 600 000 wills drafted, will gladly assist you in the drafting of your will and living will at no cost to you. Capital Legacy also stores drafted wills for its clients at no cost to them.

Speak to your financial advisor or contact us and one of our consultants will be ready to assist you.