Wills & Trusts
Living Wills in South Africa
A living will records what medical treatment you would accept or refuse if you could no longer say so yourself. It is not recognised in South African statute — but that is not the end of the question.
This is a topic that is not often spoken about, because human beings are not inclined to discuss their own mortality or the possibility of being medically incapacitated. Yet incidents occur that we are poorly prepared for, leaving loved ones in stressful situations, forced to make significant medical decisions on our behalf.
What a living will is
A living will is a document that sets out your wishes for future medical care at a time when you are still alive but cannot express them yourself. It is a form of advance directive.
Its purpose is to give instruction that you are not to be kept alive artificially — through life support or other medical intervention — where there is no possibility of recovery and death is expected. This most often arises where a person is in a coma, or terminally ill and unconscious. It also reduces hospital costs and relieves the financial burden that otherwise falls on the family.
Where it stands in South African law
Living wills are not recognised in South African statutory law. The law does, however, recognise a person’s right to accept or decline medical treatment, and the Constitution affords everyone the right to bodily and psychological integrity.
Medical practitioners faced with this dilemma should seek guidance from the South African Medical Association. All living wills and advance directive documents are read against the guidelines SAMA has set, and each doctor will act accordingly.
A living will is not a power of attorney
This distinction matters, and it is regularly misunderstood.
A power of attorney lapses the moment you are no longer of sound mind. A living will only comes into effect when you are mentally incompetent. The two do not overlap, and having one does not remove the need for the other.
What may and may not be included
Euthanasia and assisted suicide are unlawful in South Africa, and such a request cannot be included in an advance directive.
You are at liberty to record your wishes on matters including, but not limited to:
- pain management
- artificial life support
- organ donation
- cardiopulmonary resuscitation
- feeding tubes
Practical steps
It is useful to state your position in a living will so that your doctor is guided on what treatment you would accept and decline if you were medically incapacitated. The doctor will then be guided by your living will together with the SAMA guidelines.
Keep the living will in safekeeping, deliver a copy to your family doctor and to your attorney, and tell your family and friends that the document exists. A living will nobody can find achieves nothing.