April 21, 2020

The Living Will

A living will is usually understood to be a written directive to doctors in terms of which a person states his or her wishes for end-of-life medical care, when they are unable to communicate their decisions at that time. People commonly execute living wills in the hope that should their medical condition be such that there is no reasonable prospect of recovery, that their decision to die, without further medical intervention, save for medication to ease any pain, will be honoured.

In terms of current South African law, living wills are not valid.However, depending on the circumstances of each particular case some doctors do take cognisance of them. If a doctor refuses, for any reason, to follow a patient’s wishes as contained in a living will, this can lead to great stress and significant medical expenses being incurred.

Parliament is considering the National Health Amendment Bill (the“Bill”) which intends to provide for the legal recognition of living wills and the introduction of a “durable power of attorney for health care”. The Bill provides that any person who is older than 18 years and of sound mind may express, in a living will (in a prescribed form), his or her refusal, for any future potentially life-sustaining medical treatment or procedure when such person may no longer be competent to express such refusal. The Bill goes on to say that a living will may not be overridden by any other person, thereby giving it a legally binding effect.

The adherence to the terms of the living will is subject to the doctor treating the patient being satisfied that the patient’s medical condition is terminable or incurable or the patient is in a vegetative state or is completely and irreversibly unconscious. In addition, the doctor must satisfy himself in so far as is reasonably possible as to the authenticity of the living will and advise the family that one does exist where they may not be aware of it. For the protection of doctors the Bill goes on to say that a doctor may not be held criminally or civilly liable for withholding or withdrawing any medical treatment even if it hastens death; provided that the doctor’s conduct was permitted by the living will.

A durable power of attorney is a document in terms of which any person who is older than 18 years and of sound mind may in a written document (in the prescribed form) appoint and entrust any decision-making power regarding his or her future medical treatment to any adult person to act as his or her agent and mandate such agent to take any and all medical decisions, including decisions about withholding or the withdrawal of any treatment, on behalf of such person, when he or she is no longer competent to make or communicate such medical decisions.

Both the living will and the durable power of attorney for healthcare must be in writing and must be signed by the patient and two competent witnesses in one another’s presence. For both documents, the witnesses may not be a spouse or partner of the patient or related to the patient by blood or adoption.

Should you have any concerns or queries, please contact our Estates and Financial Planning Department.