Living Wills: A Must Have, Despite the Grey Areas

A Living Will is a document describing your preferences for medical treatment if you are terminally ill or critically injured and are unable to communicate.

Living Wills aren’t yet legally binding under South African law, but it’s still an extremely good idea to prepare one. Having your wishes expressed in black and white can provide much-needed clarity to both your doctors and your loved ones.

What is a Living Will?

A Living Will is a document describing your preferences for medical treatment if you are terminally ill or injured and are unable to communicate. For instance, you may not want doctors to use artificial breathing equipment or tube feeding to keep you alive while insisting on pain relief at all costs. Living Wills can also specify whether you would like to donate organs – to assist others to live, to use for research, or both.

The benefits of Living Wills

Living Wills provide serenity as they give us the opportunity to express our choice of medical care even when the ability to communicate by conventional means has left us. They also assist in preventing arguments among family members and medical professionals regarding suitable treatment.

A hard truth (and undeniable benefit) of Living Wills is that they can also assist in containing the cost of dying. Although it’s a decision no-one would like to face, many people would prefer to pass away quickly and quietly rather than live for years on life-support which (quality of life considerations aside) can lead to enormous medical bills. In the absence of a Living Will it can be very tough for a family member to request the withdrawal of medical intervention based on affordability.

But what about a Power of Attorney?

Some people mistakenly believe that a general Power of Attorney will suffice when it comes to making medical decisions on your behalf. However a normal Power of Attorney is only of use when you are in sound mind and can communicate and give instructions to the person with authority to act on your behalf. For example, if you’re in hospital and unable to manage the sale of shares to pay your medical bills, you can instruct the person you’ve granted authority to go ahead and do so. A general Power of Attorney is thus no substitute for a Living Will, which only applies when you are unable to communicate. (A “Durable Power of Attorney for Healthcare” is closer to a Living Will and more likely to be valid.)

Waiting for parliament to decide

The existing National Health Act of 2003 affirms our right to refuse any treatment whatsoever, even if doing so will demonstrably shorten our lives. According to the Act, treatment against our will actually constitutes assault. Moreover, this Act specifies that certain relatives can make healthcare decisions on our behalf should we be unable to do so. Despite the spirit of the Act being in accordance with the concept of Living Wills, there are still some doctors who don’t adhere to Living Wills, as they fear negative legal repercussions. It is hoped that parliament and/or the courts will provide some clarity on this soon.

Why do some doctors resist?

Living Wills present some complexities, but they are certainly not insurmountable. One of the main problems comes if a doctor is not aware of the presence of a Living Will when a terminally ill person is admitted to hospital. Doctors are trained to save lives (they’re bound by the Hippocratic Oath) and may automatically treat someone and then face the very difficult decision of withdrawing the intervention.

Some doctors believe that only God should determine the time and manner of our death, which means that they should always attempt to prolong life. From a legal standpoint, this fails to take account of other accepted ways in which we “interfere” with the length of life, for instance, using antibiotics and surgery.

Another complexity relates to the symbolic value of food and water. You may refuse medical treatment but wish to receive artificial nutrition and hydration. A Living Will could take care of this preference.

At the end of the day

Life is finite and dignity is always our Constitutional right. We all need Living Wills as they assist families and doctors to make critical decisions about one of your most valuable assets – your body.

This is why you should prepare your Living Will when you are healthy and most likely to make rational decisions. Whatever you decide, we’d strongly recommend discussing your choices with your family and your doctor(s). Living Wills are supposed to make their tough decisions easier, not more difficult.

Please let us know if we can do anything to assist in this regard. You and your family are our number one priority.

Disclaimer – *The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
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