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limits on what treatment you are willing to receive, and at what point you would prefer medical treatment to be withdrawn.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.