The Living Will  

No one wants to think about death, but what happens if you are in an accident and being kept “alive” by artificial means? Should your family consider switching off the machines? Do they know what your wishes are in that regard? Does the doctor agree?

Unlike a Last Will and Testament, which stipulates the manner in which a deceased’s worldly possessions are dealt with after death, a living will relates to your end-of-life wishes while you are still alive.

A living will is a legal document that allows your medical provider to know what your wishes are regarding life-prolonging medical treatments in case you are unable to make or express your own decisions. Living wills are most often used to state that, should there be no reasonable chance of recovery, you do not wish to be kept alive through artificial life support. They are also called “advanced health care directives”.

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

• The patient must have issued the directives when they were aged 18 or over.
• The patient must have had the mental capacity to make their own medical decisions at the time of issuing the directives.
• A patient may only refuse consent to treatment if they have been fully informed about their condition and proposed treatment.
• The patient did not change his or her mind after issuing the directive.

The advantages of living wills are that these directives respect a person’s human rights and, in particular, their right to reject medical treatment. A living will also assist medical professionals in making tough decisions and thus avoid the situation where the patient’s family and friends have to take a life-ending decision.

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 with clear directives about your wishes can save your family a lot of anguish and despair.

One thing to note regarding a living will in South Africa is that it cannot include directives for euthanasia or physician-assisted suicide. You can, therefore, ask for treatment to be withheld, but you cannot ask a doctor to end your life.

We advise that whilst you are drafting a new Last Will and Testament or revising an existing Will, that you request your Attorney to assist you with a living Will. Please note, however, that we recommend that clients separate a living will from their Last Will and Testament, given that the latter only becomes legally enforceable after death.

Planning for the end of life, in as far as we can, may bring peace of mind to ourselves and to our family. Drawing up a living will is an important practical part of this process.