A Living Will is a declaration of your non-consent to artificial life support, and there to guide your family and doctor in the event of you being unable to communicate your wishes when dying.
A Living Will is not part of a Last Will and Testament but rather a separate legal document that sets out your wishes for your healthcare when you cannot share them yourself, and can be made by anyone over the age of 18 years who is of sound mind.
The purpose of a Living Will
The purpose of a Living Will is to guide your family and doctors and comes into effect when you are in a medical state from which you cannot recover, and due to the condition are no longer able to make decisions. It is advised that anyone who has a Living Will should tell their family and friends about it, in order to avoid an uncomfortable surprise in a time of great distress.
Is a Living Will legally recognized in South Africa?
Living Wills are not yet recognized in statute law. However, according to Section 12 of the Constitution, “everyone has the right to bodily and psychological integrity”, which includes the right to have control over one’s own body. The law recognizes a patient’s right to accept or decline treatment. A Living Will which has been drawn up in recent months holds more weight than a Living Will a patient may have written ten years prior. So, if you feel that something may be imminent, it is best to renew your Living Will to make is clear to family and doctors that this is your current line of thinking.
Important note: Witnesses should NOT be members of the family, beneficiaries, trustees or the executor of the Last Will and Testament.
What if a doctor ignores a patient’s Living Will?
If a patient’s Living Will has been brought to the doctor’s attention and the doctor proceeds to administer life support, the doctor’s act is unlawful, even if refusal of such treatment will result in death. If a doctor does not obey the patient’s wishes regarding refusal of treatment, he/she has perpetrated an assault against the patient and can be sued. A doctor who objects to the Living Will should offer to step aside and transfer the patient’s care to another practitioner.
When can a doctor disregard a ‘Living Will’?
A Living Will can be ignored by the family and attending doctors if there is the remotest chance of recovery. Further, the law will not pay attention to a Living Will where you make unlawful wishes. For example, if you request euthanasia (mercy killing), asking a doctor to end your life by lethal injection when a terminal illness begins to cause unbearable pain. Under current legislation, this would amount to murder.
A person, 18 years or older, can ask for more painkillers, even though the result will be that he/she may die quicker. The doctor can, by law, increase the painkillers as long as the doctor does this for the purpose of reducing pain, and not with the intention of killing the patient.
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Ashes to ashes, dust to dust, all come from earth, and to earth all return.
Ashes to ashes,
dust to dust,
all come from earth,
and to earth all return.