Do you need a Living Will?
This article courtesy of www.spice4life.co.za gives excellent advice on how it works in South Africa
Broadly speaking, the purpose of a living will is to guide the family and doctors when you are in a medical state from which you cannot recover, and due to your condition, are no longer able to make your own medical decisions. As such a living will is a very different document from a last will and testament, which deals with the manner in which a deceased’s worldly possessions are dealt with after death. The nature, exact scope and purpose of the living will has thus been widely misunderstood.
Powers of attorney
From experience, one of the common misconceptions regarding living wills is that it automatically appointments a person to act on your behalf in the case of a medical emergency. The matter of giving a power of attorney (for a person to act on your behalf) given specifically in anticipation of incapacity (e.g ill health affecting mental capacity and faculties) is not a simple matter.
According to the Living Will Society of South Africa, another concept in addition to the living will (which only directs to action and does not appoint someone else to act in your stead), is an advance directive. It may also take the form of a lasting power of attorney (also referred to as a “proxy directive”), which allows the patient to appoint someone else as a healthcare proxy. For example, a trusted friend or relative could act under power of attorney to make healthcare decisions on the patient’s behalf or sign documents / enter into transactions on someone’s behalf when they no longer have the capacity to do so.
Therefore having executed a conditional or enduring power of attorney prior to becoming incapacitated may be a practical way in which to deal with your affairs promptly and effectively. However, the most obvious challenge with the approach of the enduring power of attorney, is that legal decision-making is an ongoing and dynamic process, which requires competence and capacity at the time of making a decision. Therefore the very idea of an enduring power is thus, in the view of many authors, misconceived. This school of thought supports the approach of a competent court for the application for appointment as curator bonis. The said application is time consuming and expensive and thus cumbersome.
On the other hand, the concept of the Enduring Power of Attorney (EPA) and a Lasting Power of Attorney (LPA) in countries like the United Kingdom (UK), is still acceptable.
Writers have long since commented upon these issues and several have suggested that these foreign models where legislation regulates the parameters be replicated locally, to overcome these common law problems. To date however, this has not materialised.
The ostensible jurisprudential basis for a living will is that of “informed consent” by the grantor which is both a common law and constitutional right. The word “informed” implying that the person executing same is aware of all the attendant risks involved. The living will thus speaks in instances where the author or patient is unable to do so themselves.
According to the Living will Society of South Africa, for a living will to be ethically valid, four conditions must be met:
- The patient must have issued the directives when they were aged 18 or over.
- You must be sure that the patient had the mental capacity to make their own medical decisions at the time of issuing the directives.
- A patient may only refuse consent to treatment if they have been fully informed about their condition and proposed treatment.
- You must be satisfied that the patient did not change his or her mind after issuing the directive.
The South African Medical Association (SAMA) and the Health Professions Council of South Africa (HPCSA) have both issued guidance stating that all patients have a right to refuse treatment. The HPCSA is established in terms of Health Professions Act, No. 56 of 1974 to govern the activities of healthcare professionals. Their guidelines also state that patients who have living wills in place have the constitutional right to expect their living wills to be honoured. In this respect, doctors are expected to always act in the best interests of their patients even if it means withholding treatment in accordance with their wishes; a living will should be regarded as a patient’s wish; doctors will have to rely on their professional judgment to decide on the applicability of the advance directive to a particular situation; doctors who are aware of the existence of a living will, should make all reasonable efforts to acquaint themselves with its contents except in the cases of emergency; doctors with a conscientious objection to withhold treatment in any circumstance are not obliged to comply with an advance directive and may be replaced by another doctor and also if a living will is discovered late it should not be disregarded. This should however, be balanced with the measure of reasonableness in the actions by the professional aka doctor involved.
For this reason we recommend that clients’ separate living wills from their last will and testament, given that the latter only becomes legally enforceable after death.
It should therefore be noted that this does not imply the legalisation of euthanasia in South Africa. Seeing as the End of Life Decisions Act of 1999 was never passed, euthanasia remains unlawful in South Africa.
It is important that the distinction between a living will, last will and testament and powers of attorney are clearly drawn and professionally drafted. The power of attorney either given conditionally or as an enduring power of attorney is therefore possible, but risks still exist. Accordingly, having same professionally drafted may limit this risk but not extinguish it as approaching the relevant court, notwithstanding the power of attorney, may be necessary and the appointment of a curator to handle the affairs of the person who is unable to do so himself may be the only remedy in such a situation. This until the law has evolved as it has abroad.