The meaning of a Living Will

The meaning of a Living Will

The South African Medical Association defines a Living Will as a declaration which represents a patient’s wish to refuse any further medical treatment should same be in the form of artificial means in keeping them alive. A Living Will is therefore completed to apply in situations where the patient is no longer compos mentis and able to make such life altering decisions for themselves. There exists some uncertainty as to the legal recognition of a Living Will in South Africa and more so as to the legal enforceability thereof.

A Living Will is not a Will in the sense that it is not subject to the Wills Act. Currently, no legislation exists in South Africa which governs the working and enforceability of Living Wills. This however does not mean that one is not allowed to have a Living Will in place. The uncertainty, however, does exist in the question of the enforceability of such Living Will against the decision of family members and/ or medical practitioners treating the patient.

Although the National Health Act already recognises the right of any individual to refuse treatment, the Act is unclear as to the recognition of a Living Will in situations where the individual is no longer able to make their own decision as regards to their treatment. In 2019 this uncertainty was addressed by introducing the National Health Amendment Bill to the National Assembly. The main objective of this Amendment Bill is to ensure the recognition and enforcement of advance healthcare directives, such as the Living Will, within the National Health Act. The Amendment Bill proposes that Medical Practitioners should give effect to a Living Will after satisfying him-/ herself that the medical position of the patient is terminal. It further also proposes that Medical Practitioners who unreasonably withhold or withdraw any medical treatment in accordance with a Living Will, will not be held criminally or civilly liable. Until this Amendment Bill has been promulgated, the status of a Living Will shall remain open to be regarded as unenforceable and may therefore be overridden by a family member and/ or medical practitioner.

It is a generally motivated principle to avoid any talks about death with family, friends and/or medical practitioners. However, the importance of a Living Will should never be avoided, nor should it be underestimated. A Living Will provides an individual with peace of mind that their wish will be respected even after they are unable to further communicate same. It furthermore assists in settling arguments amongst family members about future treatment which can lead to the hard truth of massive medical expenses. Even though an uncertainty as to the legal recognition of Living Wills exists, there is no denying the importance thereof.

For more information contact Erika Oosthuizen or Kelly Fourie-Barnard at office@rgprok.com or 044 601 9900.

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