Trusts / Wills & Estates

A Living Will

By 14/06/2012 July 20th, 2013 No Comments

A living will is a legal document which lets your medical provider know what your wishes are regarding life prolonging medical treatments in case you are unable to speak for yourself. You would indicate what treatments you do or do not wish have performed on you if you are in a vegetative state or are suffering from a terminal illness. Each state has different requirements for a living will and it is wise to have an attorney who specializes in will draw up the paperwork.

The document is referred to as “living will” but it is neither a will, nor is it “living.” It is effectively a document which is an “advance directive,” a directive made when the maker is in a sound physical and mental condition and is able to make a decision, instructing medical caregivers not to resuscitate him or her when there is no chance of being resuscitated after an accident, operation or terminal illness. When the time comes to make the decision the maker may not be in a position to make a sound judgement. The “advance directive” therefore will be acted upon by the care givers.

The advantages of living wills, or more accurately “advance directives” is that these directives respect the patient’s human rights, and in particular their right to reject medical treatment; it further encourages full discussion about end of life decisions. It also means that the medical staff and care givers are aware of the patient’s wishes, and knowing what the patient wants means that doctors are more likely to give appropriate treatment. It will also assist medical professionals in taking difficult decisions and avoid the situation where the patient’s family and friends don’t have to take the difficult decisions.

There are also disadvantages of living wills – writing them may be very depressing, that patient may be healthy and not in a position to actually imagine that they could ever be in the position where they would voluntarily give up living. When the time comes to act on the living will the patient might have changed his mind and it is often difficult to then amend the document.

Three (or more) original living wills should be signed. One should be with the doctor, one with family, a third one with the hospital. All readily accessible. The decision to make a living will must be shared and close family and friends must be made aware of the living will. Bear in mind that this document must not be kept with the Last Will and Testament. That document is only used some time after the death of the testator, but the “advance directive” must be readily and easily accessible.
The Last Will and Testament can only be acted upon after death, and the patient could be kept alive against the specific directives in the living will for months or even years, perhaps at great loss to your estate, before anyone is any the wiser!

The Living Will tells the doctor and family that the patient does not consent to being kept artificially. It speaks for the patient at a time when the patient may be unable to communicate.

South African law accepts the validity of the living will, as do most religions. Patients may be kept alive in as comfortable a state as possible, but all of the main religions do not accept euthanasia.

A living will deals not with assets, heirs and beneficiaries, but with the philosophy of death and dying and should be carefully considered.

14 June 2012

Ian Mc Laren

Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens Attorneys September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.