Legal Articles

The purpose of a Living Will is to guide your family and doctors when you are in an unrecoverable medical state and are no longer capable of making your own medical decisions because of this condition.

Living Will and Last Will and Testament

A Living Will is very different from a Last Will and Testament, which serves the purpose of managing how a deceased’s worldly possessions are dealt with after their death. And so, it is quite obvious why the nature, exact scope and purpose of the Living Will has been misunderstood by most.

One of the common misconceptions about Living Wills relates to the automatic appointment of a person to act in your behalf (giving power of attorney) in the case of a medical emergency such and ill health affecting mental capacity and faculties.

As this isn’t a simple process, it is important to be informed about some of the facts of process to ensure that no complications arise.

Because the Living Will only directs the actions that occur if such a medical emergency were to occur, and doesn’t appoint someone else to act in your behalf, it is thus usually paired with an advanced directive.

Lasting Power of Attorney or Proxy Directive

This could take the form of a lasting power of attorney or proxy directive, which allows the patient to appoint someone else as a healthcare proxy.

For example, a trusted friend or relative could act under power of attorney to make healthcare decisions, sign documents or enter into transactions on the patient’s behalf.

Having a conditional or enduring power of attorney prior to becoming incapacitated is therefore a practical way to deal with one’s affairs without having any complications getting in the way.

Curator Bonis - Power of Attorney

However, the biggest challenge with the approach of the enduring power of attorney, is that legal decision-making is an ongoing and dynamic process, which calls for a person to be competent at the time of making a decision. This leads to the enduring power being misconceived. The application for appointment as curator bonis from a competent court is however time consuming and expensive.

The concept of the EPA and a LPA in countries like the United Kingdom, is still acceptable. This has led many to want these foreign models where legislation regulates the parameters to be replicated locally, to help us overcome these common law problems. However, this has not come into effect.

The supposed legal basis for a Living Will requires the “informed consent” of the grantor which is both a common law and a constitutional right. This implies that the person executing on your behalf is aware of all the potential risks involved. The Living Will thus speaks in instances where the affected person is unable to do so themselves.

For a Living Will to be ethically valid, four conditions must be met:

1. The patient must have issued the directives when they were 18 years or over.
2. The patient needs to have had the mental capacity to make their own medical decisions at the time of issuing the directives.
3. A patient may only refuse consent to treatment if they have been fully informed about their condition and proposed treatment.
4. The person acting in behalf needs to be sure that the patient did not change his or her mind after issuing the directive.

The South African Medical Association and the Health Professions Council of South Africa (HPCSA) have both issued guidance stating that all patients have a right to refuse treatment.

The HPCSA was established in terms of Health Professions Act, No. 56 of 1974 to govern the activities of healthcare professionals. Their guidelines also state that patients who have Living Wills in place have the constitutional right to expect their Living Wills to be honoured.

Doctors are thus expected to always act in the best interests of their patients even if it means withholding treatment in accordance with their wishes.

A Living Will should be regarded as a patient’s wish and so doctors will have to rely on their professional judgment to decide on the applicability of the advance directive to a particular situation.

The doctors who are aware of the existence of a Living Will need to familiarise themselves with its contents except in the cases of emergency.

If a doctor has a conscientious objection to withholding treatment in any circumstance, they are then not obliged to comply with an advance directive and may be replaced by another doctor. Additionally, if a Living Will is discovered later it should not be disregarded. This should however, be balanced with the measure of reasonableness in the actions by the doctor involved.

However, this does not imply that euthanasia is legal in South Africa. This is because the End of Life Decisions Act of 1999 was never passed, and thus euthanasia remains unlawful in South Africa.

Van Deventers & Van Deventers Inc. – Estate Planning, Living Will and Last Will and Testament

It is important that the distinction between a Living Will, Last Will and Testament and Powers of Attorney are clearly drawn and professionally drafted.

The Power of Attorney either given conditionally or as an enduring Power of Attorney is therefore possible, but risks still exist. And so, getting legal assistance to have these documents professionally drafted may assist to limit these risks.

Approaching the relevant court may be necessary and the appointment of a curator to handle the affairs of the person who is unable to do so himself may be the only remedy in such a situation.

For assistance with the drafting of your Living Will, Last Will and Testament or Estate Planning, please contact our attorneys in Sandton.