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What is a Living Will?

  • May 2, 2020
  • Tamasen Maasdorp (Conveyancer and Family Law, Notary Public, Wills, Trusts & Deceased Estates Specialist)

A Living Will is an advance written instruction in which you can express your consent or refusal to any medical treatment should you be unable to do so at a future date.

In a Living Will, you can establish limits on what treatment you are willing to receive, and at what point you would prefer medical treatment to be withdrawn.

Your Living Will can also incorporate you wishes regarding any arrangements after death such as any funeral arrangements and whether you would like to donate your organs upon death or whether you are against donating your organs.

Should you be unable to speak for yourself, a Living Will can assist your family and medical professionals to make decisions in accordance with your wishes and spares your family and loved ones from having to make difficult life or death decisions on your behalf.

The wishes incorporated in a Living Will can be incorporated into your Last Will and Testament but as they can be quite lengthy and because we recommend that both your medical practitioner and your next-of-kin have access to your Living Will so that they may refer to your Living Will should they need to, we recommend that you execute a Living Will that is separate to your Last Will and Testament.

In South Africa there is no legislation recognising the status of a Living Will, nor is there any case law regarding the validity of a Living Will. However, the South African Medical Association has created guidelines for Living Wills which state that all patients have a right to refuse medical treatment.

When drafting a Living Will, it is essential that the advance directive is specific to a particular circumstance or treatment as a medical professional may refuse to give effect to general directives as they may be too vague to accurately give effect to the patient’s wishes.

It is therefore important that you seek legal assistance in drafting your Living Will to ensure that it accurately expresses your wishes to a medical professional and does so with sufficient particularity.

Once you execute a Living Will, you should then obtain a certified copy of the original, so that you can file your Living Will with both your next-of-kin and your medical practitioner.

Tip: We recommend making a small ‘business card’ sized card stating that you have a Living Will and keeping it in your wallet. Take it with you when you are out so if something happens to you, the first responders will know you have a Living Will and can ask your family to look for it.And perhaps do the same with your organ donation card.

About the author

Tamasen Maasdorp (Conveyancer and Family Law, Notary Public, Wills, Trusts & Deceased Estates Specialist)

Tamasen Maasdorp is a Reynolds Attorneys consultant specialising in Conveyancing, Family Law, Notary Public, Wills, Trusts & Deceased Estates. She graduated with a Bachelor of Laws from the University of Cape Town, South Africa, and a Master of Laws from Melbourne University, Australia.
  • Estates & Trusts, Wills
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Nicole Copley

NGO law

Nicole Copley is an NGO lawyer who works for NGO clients all over South Africa and internationally. She qualified with a BA LLB LLM (Tax) from the University of KwaZulu-Natal, Durban (with a Masters in tax exemption), and is a Master Tax Practitioner SATM.

Nicole advises on, drafts and amends founding documents for and sets up every sort of organisation required by South African NGOs. She makes tax exemption and 18A (deduction of donations) applications, and applications to be registered with the Nonprofit Organisations Board. She (and her team) keep registrations up to date and assist with compliance and reporting. She also NPO reporting and other services. She advises on re-structuring and assists not-for-profits in understanding and applying the useful provisions of B-BBEE.

She also does commercial drafting work for her NGO clients, vetting and drafting agreements for them. She works for a wide range of types and sizes of organisations and aims to provide a pragmatic and efficient service. Her decades of experience in consulting to NGOs means she takes the long view, is focused on governance, ethics, credibility and sustainability and steers clients away from quick fixes, helping them build/renovate so that the organisation outlasts current office bearers.

Nicole works with other consultants to the not-for-profit sector, collaborating on training, newsletters, advising government on legislation for the sector and, most recently, a series of practical guides for the sector, called “NGO Matters”, originally published by Juta but now published by Nicole as NGO Matters Publications.

She has been a consultant since 2019.

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