Do You Need an “Advance Directive” or a “Living Will”?

Do You Need an “Advance Directive” or a “Living Will”?

If you don’t want to be kept artificially alive – without your consent and perhaps in pain and distress – long after your medical condition becomes hopeless, you need to communicate your decision now to the doctors, hospitals and loved ones who will be caring for you at the end.

Incapacitation can strike without warning and at any time, so prioritise this whilst you are still mentally and physically competent to express your wishes.

Living Will v Advance Directive:  What’s the difference?

Both are “advance health care directives”, expressions of your wishes for future care.  Both become effective only when you lose the ability to communicate for yourself.  They are a gift to your loved ones and medical carers, helping them to make the hard decisions they will need to make in order to spare you the nightmare of suffering while your life is pointlessly prolonged.

An  Advance Directive differs from a Living Will in that it enables you, in addition to giving detailed instructions on what medical treatment you do and do not consent to in various scenarios, to also appoint a ‘Medical Proxy” (normally a close family member) who will make medical decisions for you.  Appoint both a Primary and an Alternate proxy in case your Primary choice is unable or unwilling to act at the critical time.

Ask your doctor for guidance if you are unsure about what to do here, and for advice on the implications of the specific advance directions you are giving. You might for example decide that you want aggressive intervention in some eventualities but not in others.

Are these advance health care directives recognised by law?

We need to draw a clear distinction here.  Euthanasia and “assisted suicide” are still generally unlawful in South Africa, quite apart from conflicting with many people’s moral/cultural/religious beliefs.

But whereas euthanasia and assisted suicide are said to involve an active intervention to terminate life, typical advance health care directives merely express your wish that when the time comes you be allowed to die naturally and with dignity, in other words that nature be allowed to take its course.  We must all decide for ourselves the extent to which we are comfortable with that.

But will our courts recognise the legal enforceability of these directives?  In 2016 the Supreme Court of Appeal, whilst finding that euthanasia and assisted suicide remain unlawful, made several comments that perhaps bode well for the acceptance of advance directives.  So whilst their legal enforceability cannot be guaranteed until our courts rule specifically and definitively on the matter, the signs certainly seem more positive than negative.

In any event, in practice you will greatly increase the chances of your wishes being honoured at the end if you have confirmed beforehand with your loved ones and medical carers that they will do so.

You still need a “Will”!

Note that Living Wills and Advance Directives are very different to a “Last Will and Testament”, in which you provide for distribution of your assets to your heirs after you die.  You need both.

In closing, and this is important …

  1. Make sure that everyone knows how to find your Advance Directive or Living Will in a hurry. Ideally lodge signed originals with all the role-players.
  2. Diarise to review your directions at least annually, and if you change your mind about anything, destroy all the old originals and replace them with new originals specifically revoking all previous directions.
Ashersons Attorneys

Ashersons Attorneys

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