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.

You can contact Ruurd van der Wal for assistance at:

Tel: 014 592 9241/2/3
E-mail: ruurd@ruurdvdwal.co.za
Fax: 014 5929539
First Floor De Anker Building, 59A Von Wielligh Street, Rustenburg, South Africa, 0299