A living will can speak for you when you cannot speak for yourself
A living will is a legal document that sets out your wishes for your healthcare when you cannot share them yourself. It guides your family and healthcare providers when you are not in a condition to make decisions or express your wishes.
Document your wishes for future medical treatment
"A last will and testament is an estate-planning tool that sets out our wishes after we die," explains Harry Joffe, Head of Legal Services, Discovery Marketing. "It's an important document for any person with assets or wealth to have in place. However, for people who are dealing with a life-changing illness, a living will is very valuable when it comes to documenting our wishes for medical treatment while we are still alive."
While a last will and testament deals with how our assets are shared after we die, a living will is a separate document that expresses our wishes for our medical care while we are still alive, but at a point where we can't express our wishes ourselves.
What is in a living will?
A living will:
- Gives instructions for not being kept alive through life-support or other artificial medical interventions when there is no hope of recovery and death is inevitable - for example, if someone is in a coma, unconscious and terminally ill. This helps reduce the financial burden of advanced life support where there is no prospect of recovery.
- Can include our wishes for organ donation.
Keep your living will safe and up to date
Having a document that clearly states your wishes can be a gift to family members. "Without it, they may have to make difficult decisions about your medical care or other issues by themselves, without your input to advise them," says Harry.
"Once we have drawn up a living will, it's important that our loved ones know about it and know where to find it," adds Harry. "You could ask your doctor or a lawyer to keep it safe for you. Also review your living will regularly so it is in line with your views and changing reality."
Are living wills recognised in South African law?
Although anyone over the age of 18 who is of sound mind can have a living will drawn up, these documents are not yet recognised in South African statutory law. However, our law does recognise each person's right to accept or decline treatment. South Africa's Constitution states that everyone has the right to bodily and psychological integrity, which includes control over one's own body.
Doctors and family members do not have to comply with the wishes stated in a living will if there is the slightest chance of recovery. Doctors are therefore advised to get advice from the South African Medical Association (SAMA) if necessary when a patient of theirs has a living will.
How do I draw up a living will?
Consult a legal practitioner who has the necessary experience and knowledge for drafting of a living will. If you want to draw up a living will, you will need to consider:
- The medical treatment needed.
- How comfortable you want to be through your healthcare journey.
- How others should treat you at all stages of the journey.
According to SAMA, a living will should be addressed to anyone who may have to implement it or apply to a court to enforce it - for example, a patient's family and their doctor. These people should know about the document and be able to access it easily when its needed.
- Read SAMA's guidelines on living wills in full and access an example of living will and how to draft one.
- DignitySA also offers key insight into living wills and a template for drawing one up.
Do I need a living will if I have given power of attorney to someone?
Yes. Any power of attorney falls away when the person who has given it is no longer of sound mind to authorise someone else to act for them. In contrast, a living will should become effective once a person has become mentally incompetent, and is therefore very useful in this regard.
"It can be hard to think about drawing up documents like this while you are also focusing on treatment for a life-changing or advanced illness," says Harry. "It's also, understandably, emotionally challenging for loved ones to hear your thoughts on your end-of-life care. You may find they don't want to talk about the thought of a medical treatment being unsuccessful or of losing you. For these reasons, it's a good idea to ask your healthcare provider to help you have the conversation."