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The difference between a living Will and a last Will and testament

File Image: IOL

File Image: IOL

Published Aug 12, 2021


By Juan Buys

Sometimes family members face a difficult situation when a decision has to be made about a loved one in circumstances in which they are not able to make informed decisions and give their consent regarding medical treatment.

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In some cases, a family can be left with enduring questions and feel of guilt after making a decision on whether a loved one should be kept on life support or not.

To save your loved one from the emotional trauma of having to make that call, you can have a living Will drafted and duly signed. This is a written instruction that outlines a person’s wishes about future medical treatment. For example, if a person is in a coma and there are no reasonable chances of recovery, a Living Will could state whether or not the patient wishes to be kept alive through artificial life support or not. A Living Will, however, cannot include directions for euthanasia or doctor-assisted suicide. It is only applicable in instances to preserve life choices. Incapacity due to illnesses such as dementia and mental health cannot be covered under a living Will.

To make a Living Will, a person must be over the age of medical consent (12) and be sound of mind.

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It is of importance to note the distinction between a Living Will and a Last Will and Testament. The provisions of a Living Will are enforceable while a person is still alive. The provisions of a Last Will and Testament takes effect on the death of a person. Therefore, these two Wills should not be incorporated in one document, but should always remain as separate documents, as effect is given to them at different times.

Is a living Will legally valid and enforceable?

South Africa does not have clear legislation for Living Wills. However, there is an important court case (CLARKE v HURST NO AND OTHERS 1992 (4) SA 630 (D)) which can be referred to. Dr Frederick Cyril Clarke was a life member of the SA Voluntary Euthanasia Society.

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In 1988, he suffered cardiac arrest and was reduced to a vegetative state. Dr Clarke had signed a Living Will, requesting of his family and physician that, in the event of there being no reasonable expectation of his recovery from an extreme physical or mental disability, he be allowed to die rather than live by artificial means.

His wife duly applied to be appointed his curatrix personae, with the power – even were this to result in his death – to authorise the discontinuance of his treatment.

The Attorney-General opposed the application, arguing that Mrs Clarke was effectively asking for a declaratory order to end a life and declined to undertake not to prosecute if this should transpire.

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The verdict of the court, however, declared that Mrs Clarke would not be acting wrongfully or unlawfully:

  • "if she authorises or directs the discontinuance of the naso-gastric or any other non-natural feeding regime for the J patient"; and/or
  • "if she withholds agreement to medical or surgical treatment of the patient save such treatment as may seem to her appropriate for the comfort of the patient."

South African patients are of the view that wishes in the form of a written guideline, to refuse life-saving or sustaining therapy, will be honored in all circumstances. However, this is not necessarily the case because the South African Medical Association has certain rules pertaining to the treatment of medical practitioners to adhere to when it comes to living Wills.

In instances where there is an advance directive in existence, particular to a unique set of circumstances where the individual concerned has capacity to understand the consequences of their actions, wishes expressed in a Living Will, will have no force and effect. A medical practitioner has to comply with the required medical standards, as opposed to adherence to the provisions of a Living Will.

Many people store the Living Will in a private safe, which no one else has access to. In order for effect to be given to a person’s wishes, it should, however, be a document which can easily be accessed by family members or a medical practitioner.

Juan Buys is a Fiduciary Specialist at PPS Wealth Advisory


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