Fiduciary Services
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Is a Living Will binding and recognised in South Africa?
Avoiding the unnecessary prolonging of life
In South Africa anyone over the age of 18 who is of ‘sound mind’ can sign a Living Will, though it is important to note that this document is not (yet) recognised in South African statutory law. However, our law does recognise each person’s right to accept or decline treatment.
As it stands at the moment in South Africa, anyone can refuse medical treatment (even if it causes death) – unless a specific law states that a doctor must provide certain treatment.
The South African Medical Association has stipulated specific guidelines for medical practitioners to adhere to, in terms of implementing any Living Will.
A Living Will isn’t the same as a Will, and it has very different legal ramifications
Patients frequently believe that an instruction to refuse life-saving or sustaining treatment will be honoured under all circumstances. This is not necessarily the case, and if there is an advance directive specific to a particular set of circumstances, a Living Will won’t prevail in these circumstances. Additionally, if a directive is so broad and general that it applies to all possible events that could arise, doctors could view it as too vague to give clear directions about the patient’s wishes.
Without clear direction and the patient’s intent, family, friends and physicians may be forced to agonise over a heart-wrenching decision as to whether to sustain life mechanically and artificially, or allow a patient to pass on, on their own terms.
Preparing and sharing a Living Will can alleviate the angst and uncertainty which comes with making this all-important decision about loved ones.
A Living Will should not be confused with euthanasia (assisted suicide), which is not permitted in South Africa.
A Living Will is a valuable instruction document which directs the family, friends and physicians regarding a person’s wishes should they become so incapacitated that there is no reasonable prospect of their recovery.
This important documentation affords one the dignity of dying without being subjected to mechanical and artificial life support, on machinery or painful treatments, without which, one would usually pass on earlier, on one’s own terms. It assists family, friends and the physician in making this often very difficult and emotional decision.
Just as with a conventional Will, a Living Will must be drawn up and signed whilst the person is of sound mind and is able to make a carefully considered decision. It should clearly and unequivocally direct that:
- if the time comes when one is no longer capable of making rational decisions, and,
- that after a period of 30 days there is no reasonable prospect of recovery from physical illness or impairment which is expected to cause severe distress and render one incapable of rational existence, then
- one must be treated with whatever quantity of drugs is required to keep them free from pain even if this hastens the moment of their death, and
- one must be allowed to die a natural death, and not be kept alive by artificial means,
The Living Will should include clauses that exonerate and exempt those providing the medical care from any blame, also indemnifying family members and friends who enact this document’s content. The Living Will should specifically indemnify any blame arising from the use of – or failure to use – treatment or life support systems to artificially extend life.
It is important to note that a Living Will does not revoke or replace any previous last Will and testament, it is a supplementary document, the original of which is often kept in the same place as the Will.
The document should be signed in the presence of two witnesses who should not be related to the person, nor should they be the person’s physician.
Copies of the Living Will should be given to family members, friends and any attending physicians, often evoking real and emotional discussions, ensuring that there is no question regarding one’s wishes.
Drafting a Living Will
Contact our GTC MAPS team or your GTC Financial Adviser, for a consultation in this regard.
