It’s never too early – or too late – to protect your rights and ease the burden on loved ones.
Let’s be honest, none of us like to think about the possibility of being seriously ill or unable to speak for ourselves. But as we get older (and wiser), we know that planning ahead can offer a great deal of peace of mind – not only for us, but for our loved ones too.
When it comes to your healthcare decisions, two terms often come up: Living Will and Healthcare Directive (sometimes also called an Advance Healthcare Directive or Durable Power of Attorney for Healthcare). Many people use them interchangeably, but in South Africa, they are not the same thing.
Here’s what you need to know:
So, what exactly is a Living Will?
A Living Will is a document where you clearly state your instructions regarding medical treatment preferences in cases where you are ever unable to speak for yourself, usually during a serious illness or at the end of life. It is a way of telling doctors and loved ones what you do (or don’t) want when it comes to interventions like:
- Being placed on life support;
- Receiving CPR (resuscitation);
- Using a feeding tube or ventilator.
In essence, it tells your medical team and family what not to do if you are in a situation where recovery is unlikely and you cannot speak for yourself, such as being in a permanent vegetative state.
Important to know:
In South Africa, Living Wills are not legally binding, but that does not mean they are useless. In fact, most healthcare professionals will take your Living Will seriously, especially if it is clear and specific.
How Doctors Use a Living Will and Its Limitations
Even if you have a Living Will, there might be situations where your doctor still needs to rely on their professional judgment. This can happen if your Living Will is vague, incomplete, or does not apply to the exact medical scenario you are facing.
That said, South African medical guidelines (like those from the South African Medical Association – SAMA) recommend that doctors respect the patient’s wishes as stated in their Living Will, especially when it reflects how the patient would want to be treated if they could still speak for themselves.
However, if a doctor personally objects to withholding certain treatments (due to ethical or religious beliefs), they are expected to be honest about that and then hand over your care to another doctor who is willing to follow your stated wishes.
It is important to understand that a living will cannot contain any requests for euthanasia or assisted suicide, as these remain against the law in South Africa. However, choosing to refuse or stop treatment is not considered assisted suicide, since it simply allows the illness to follow its natural course.
And what is a Healthcare Directive?
A Healthcare Directive provides an additional layer of support. It allows you to appoint someone you trust, often called a healthcare proxy or agent, to make medical decisions on your behalf if you are unable to do so yourself.
This person does not just follow a checklist, they can speak to doctors, weigh up your options, and act in your best interests based on your values and wishes. Think of it as giving someone legal permission to be your voice in the room.
In South Africa, a Healthcare Directive is sometimes combined with a general power of attorney, but it is important to understand: a normal power of attorney ends if you become mentally incapacitated. That is why this specific document must be worded very carefully, ideally with legal advice.
So what’s the difference?
From an ethical standpoint, four criteria must be fulfilled for an Advance Directive to be considered valid:
- The directive must have been created by the patient when they were at least 18 years old or older;
- The patient must have had the mental ability to make their own medical decisions at the time the directive was made;
- Refusal of consent to treatment is only valid if the patient was thoroughly informed about their medical condition and the treatment options;
- It must be clear that the patient did not change their mind after writing the directive.
When all these conditions are met, the directive should be ethically respected and followed. Additionally, it is generally recognized that such directives remain valid even if the patient later loses the ability to make decisions.
Thinking about future medical decisions is not easy, but it is one of the most important acts of care you can offer yourself and your loved ones. Whether through a Living Will that outlines your treatment preferences, or a Healthcare Directive that appoints someone you trust to speak on your behalf, planning ahead ensures your voice is heard even when you cannot speak for yourself.
FOR ENQUIRIES:
Meyer de Waal
MDW INC
meyer@mdwinc.co.za
021 461 0065 & 083 653 6975
Daniela Papa
daniela@mdwinc.co.za
021 461 0065 & 083 783 8494
Dr. Jeffrey P. Lewis
jeffrey@mdwinc.co.za
021 461 0065 & 076 952 4985
For further information, please see MDW INC Attorneys in the YEI Directory. You are welcome to contact MDW INC via the contact form on this page.
