Thinking about illness or incapacity is uncomfortable, but planning for it can spare your loved ones painful decisions later. While most people are familiar with a last will and testament, fewer understand the role of a living will – also called an advance directive.
A last will and testament serves as a vital estate-planning instrument that outlines our desires following our passing. This document is crucial for individuals possessing assets or wealth. Conversely, for those facing a significant illness, a living will is invaluable as it records our preferences regarding medical treatment during our lifetime. While a last will and testament addresses the distribution of our assets after death, a living will is distinct in that it communicates our medical care preferences while we are alive but unable to express them directly.
What a living will covers
A living will can:
- State whether life-sustaining treatment should be withheld or withdrawn when recovery is no longer possible.
- Express preferences about pain management and other interventions.
- Reduce the financial and emotional strain of prolonged life support where there is no chance of recovery.
- Record wishes regarding organ donation.
Typical scenarios include being in a coma, terminally ill, or permanently unconscious.
The legal position in South Africa
In South Africa, anyone over 18 who is mentally competent may draw up a living will. However, there is no statute that specifically recognises them. That said, our law does respect a person’s constitutional right to bodily and psychological integrity, which includes the right to refuse medical treatment.
It is especially important to note that doctors and family members do not have to comply with the wishes stated in a living will if there is the slightest chance of recovery. In uncertain cases, the South African Medical Association (SAMA) advises doctors to seek guidance. SAMA has also issued guidelines on interpreting and respecting living wills.
Key considerations
- A living will should be clear, specific, and accessible to family members and doctors.
- It should cover the type of medical treatment desired or refused, comfort and care preferences and other guidance for healthcare providers.
- Any power of attorney becomes invalid once a person loses mental capacity. A living will therefore, becomes crucial when someone is no longer able to make decisions for themselves.
- Importantly, euthanasia and assisted suicide cannot be included in a living will, as these remain unlawful in South Africa.
Why professional advice helps
Drafting a living will is more than filling in a form. A legal practitioner can ensure your wishes are expressed clearly and within the law, while consultation with medical professionals ensures the directives are practical and aligned with your condition.
A living will cannot predict every scenario, but it can provide peace of mind. It allows you to have a voice when you no longer have the ability to speak, reduces uncertainty for your family, and ensures medical treatment aligns with your values.
If you are considering one, seek professional guidance to create a document that is legally sound and medically relevant and, most importantly, one that reflects your wishes with clarity and compassion.
Sidenote:
A living will is a medical directive, not a financial instrument. It won’t reduce your taxes or estate duty. However, medical expenses you incur (for hospitalisation, palliative care, or chronic treatment) may qualify for tax credits. For tax efficiency in estate planning, it’s your last will and testament — not your living will — that plays the key role.
