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File Image: IOL
Janet Hugo
Janet Hugo
PLANNING POINTS

Living wills are in the news, because there’s an Amendment Bill before Parliament to clarify their legal status. I’m happy to share the knowledge that the related issues are very relevant to my personal circumstances. My husband was diagnosed with rare blood cancer, and although he has recovered, we’ve gone through the process of reviewing our living wills and have made some changes.

What is a Living Will?

A living will is a very specific document regarding your health care at the end of your life. It states that any treatment that would otherwise lengthen your life should be withheld, in specific circumstances including being in a permanent vegetative state, irreversibly unconscious, or terminally ill and suffering. A living will can also specify whether you would like to donate organs or tissue to assist others to live or to use for research.

Through a living will you express the desire to die a natural death, free from having one’s life extended artificially using life support in any form, such as medication, tube feeding, dialysis, or a life support machine. A living will usually does not withhold any necessary and adequate pain management even if it shortens life.

I prepare living wills similarly to any other fiduciary document, such as a last will and testament or a power of attorney. My clients sign the document when I know that they’re of sound mind and it’s a free expression of their preferences. My clients’ signatures are witnessed by two people who are not family members or their doctor. I regard the preparation of living wills as an essential part of an estate planning process. Our bodies are, after all, our most valuable asset.

Some complexities

There is uncertainty about the legal status of living wills in South Africa even though the National Health Act affirms our right to refuse any treatment whatsoever, even if it would thereby shorten our lives.

Moreover, the Act specifies which of our relatives can make health care decisions on our behalf should we be unable to do so.

Doctors’ responses may vary when terminally ill patients are admitted to hospital. Some fear litigation and revive patients regardless of an existing living will and their family’s consent to withdraw treatment. The National Health Amendment Bill anticipates putting a stop to this.

One of the practical problems regarding living wills is that they are often not accessible to doctors when patients are admitted to hospital. Doctors naturally intervene using life support equipment and may later need to make the very difficult decision to withdraw the support when the living will is presented to them.

The benefits of Living Wills

Living wills provide peace of mind as they give us the opportunity to express our choice of medical care should we be terminally ill and unable to communicate.

They also assist in settling arguments among family members and medical professionals regarding appropriate treatment.

Another hard truth and benefit of living wills is that they assist in containing the cost of dying. Most people would prefer to pass away rather than live for years on life support which can lead to astronomical medical bills which jeopardise their family’s financial security. It’s very tough for a family member to request the withdrawal of medical treatment based on affordability.

What about a Power of Attorney?

A power of attorney is of use only when you are of sound mind, able to communicate and authorise a person to act on your behalf. For instance, if you’re in a hospital and unable to manage the sale of your home, you can instruct the person to whom you’ve granted authority to proceed on your behalf. A general power of attorney is thus not a substitute for a living will, which only applies when you are unable to make your own medical decisions.

At the end of the day

I firmly believe that everyone needs a living will, as the complexities can be managed, and all the underlying principles are already embedded in our law and the National Health Act.

One needs to prepare the document when you’re well and likely to make rational decisions. Also, I recommend that you discuss the document with all members of your family and a fiduciary specialist and make it widely available to all who might manage your medical care.

Having your medical affairs in order might well be your final act of love that you show your family.

Janet Hugo is a director of Sterling Private Wealth and the Financial Planner of the Year for 2018/19. This is an edited version of a feature on living wills that was published in the second quarter 2019 edition of Personal Finance magazine.

PERSONAL FINANCE