20 March 2015
189
Most people do not like the idea of their lives being prolonged by means
of artificial life support when there is no reasonable quality of life
or hope of recovery. Having a formal document in which your wishes in
this regard are clearly stated can lift the burden off family members
who would otherwise have to make the anguished decision themselves.
The unnecessary prolonging of one’s life can be highly distressing for
loved ones, and the medical costs involved can place financial strain on
your family. There have been cases where patients were kept alive for
years on life support because there was no clear directive about their
wishes. This is where the living will comes into play.
What is a living will?
A living will is a document that expresses your wishes, in no uncertain
terms, in the event that you as an individual are no longer able to do
so due to the occurrence of some or other catastrophic accident or an
injury you have sustained. The living will would most often state that,
should there be no reasonable chance of recovery, you do not wish to be
kept alive through artificial life support. Unlike a will, or a “last
will and testament”, which stipulates certain directives after your
death, a living will relates to your end-of-life wishes while you are
still alive.
A common example of when a living will would apply is where an
individual was involved in a car accident and, due to injuries
sustained, cannot express their wishes regarding continued life support
to the medical personnel who are providing care and treatment, usually
because of extensive brain damage or because the individual has fallen
into a coma. The essence of this is that the medical staff will then
allow you to pass away by switching off any life-preserving machinery.
However, this will only be allowed where there is a properly drafted
document in place, failing which the medical staff will not give effect
to the wishes of the individual or their family. There may even be legal
consequences if any action is taken without such a document being in
place.
It is very important to ensure that this document is meticulously
drafted, as an error could lead to prolonged suffering and to the
incurrence of substantial medical costs, both of which could have been
avoided.
In South Africa, a living will may not include directives for euthanasia
or physician-assisted suicide i.e. you can ask for treatment to be
withheld, but you cannot direct a doctor to end your life, for example,
in the event that you develop advanced Alzheimer’s but are otherwise
able to continue living without life support.
In order for the living will to be valid and enforceable it must be
signed by you and two witnesses, in each other’s presence. The said
witnesses should, however, not be any your family members, your doctor,
or any of the beneficiaries listed in your last will and testament.
The whereabouts of the letter containing your living will, as well as
the contents thereof, must be made known to close relatives. Ideally,
there should be at least three copies which you can give to some of your
family members and your doctor to keep safe until such time as the will
is needed. You should make sure that anyone who may have to implement
your directives knows about your living will and where it is kept.
As the living will governs and guides decisions whilst you are still
alive, it should never be incorporated into or attached to a last will
and testament. The last will and testament is only acted upon after your
death and there is a risk that your living will directives may only
come to light then, and it will already be too late to implement them.
The future is unpredictable, and anything can happen. A person could
live to be a hundred years old or die in a car accident tomorrow. Rather
be safe than sorry, and ensure that you have a living will in place –
or you might wish that you had done so when it is too late.
Article by Ruurd van der Wal (DU PLESSIS & VAN DER WESTHUIZEN ATTORNEYS)