As stipulated in the Bill of Rights everyone has the right to dignity, the right to life and the right to freedom and security of the person which entitles the individual to make informed decisions about his or her life and body. A living will is an advanced directive which represents a patient’s wishes to refuse  medical treatment and/or attention when the patient is no longer competent to express such views.  A living will is distinguishable from a testament, as the latter comprises an individual’s directives regarding his/her estate and comes into operation upon death, whereas the former comprises an individual’s directives regarding end of life decisions whilst still alive.

As a written, duly signed and attested, living will comprises an individual’s express directives, concluded when competent and sober of mind, regarding end of life decisions same should be enforceable without any further formalities necessary.  Should the medical personnel or doctor not obey the patient’s wishes he/she in fact perpetrates an assault against the patient and can be sued.

A living will need not be a complicated document.  Some clauses generic to a standard living will can read as follows:

  • I do not wish to be kept alive by medical treatment, if I have a physical illness with no likelihood of recovery, and/or if my mental functions become permanently impaired, and/or if I become permanently unconscious with no chance of regaining consciousness.
  • I request that medical treatment be kept to the minimum needed to keep me comfortable and free from pain, even if this should hasten the moment of death. I expressly direct that I be given whatever quantity of drugs required to keep me free from pain or distress even if the moment of death is hastened thereby. I expressly do not consent to be kept alive artificially, including (but not confined to) performing a gastrostomy, inserting a nasogastric tube or employing any form of mechanical ventilation, and/or to provide any form of tube feeding.
  • I give consent to any person to apply for a court order to ensure that this Living Will is followed if any medical, health authority or institution, and or family member or partner refuse to follow my instructions.

A living will can further nominate another to make end of life decisions on your behalf should you be incompetent and/or unable to communicate and/or convey same. A living will in South Africa cannot contain a directive for euthanasia or physician – assisted suicide i.e. directing the doctor to end your life.

The South African law recognises the validity of a duly executed living will.  A living will must be in writing, signed and attested to by two competent witnesses in the presence of each other.  A competent witness is a witness above the age of 16 years whom is competent to testify in an open court, should the need arise, and should not be a family member, your general practitioner or beneficiaries in your testament. It is recommended that the living will be discussed with your partner / spouse / next of kin and that copies be provided to these individuals for safekeeping.  It is also wise to provide your General Practitioner with a copy for record purposes.

A living will can be compared to a life insurance policy, in that both a living will and a life insurance policy provides security to loved ones left behind.  The difference is that, a life insurance policy provides monetary security, whereas a living will provides moral and emotional security for loved ones left behind and burdened with making end of life decisions on behalf of the patient.

Contact your local attorney to discuss the execution of a living will in order to ensure your wishes regarding medical treatment is encompassed in a written directive and simultaneously safeguarding your loved ones against end of life decisions.

By Hannelie Janse van Rensburg, a senior associate at Barnard Inc Attorneys.

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