Deceased Estate Administration, Wills and Trusts

 

 

 

No, there is no official registration system for Living Wills or Healthcare Proxies in South Africa.  However, it's crucial to make sure your documents are accessible when needed:

  • Keep Originals Safe but Accessible: Store the original documents in a safe place known to your family and healthcare proxy (if appointed).
  • Provide Copies: Give copies to your doctor, family members, and your healthcare proxy.
  • Discuss with Healthcare Providers: Inform your primary care doctor and any relevant specialists about your Advance Directives and ensure it's noted in your medical records.
  • Consider Digital Access (Securely): In addition to paper copies, consider storing a secure digital copy that can be easily accessed in emergencies (e.g., using a secure cloud service accessible to trusted individuals).

For most people, having both a Living Will and a Healthcare Proxy is the most comprehensive approach to advance care planning. They complement each other:

  • Living Will: Provides your specific instructions for treatment refusals, ensuring certain lines are clearly drawn according to your wishes.
  • Healthcare Proxy: Provides a trusted decision-maker to handle situations not covered by your Living Will, to interpret your wishes, or to make broader healthcare choices in unforeseen circumstances.

Together, they offer a robust framework: your Living Will gives clear directions, and your Healthcare Proxy provides a trusted agent to navigate complex situations and make decisions in your best interests when you cannot.

The two primary forms are:

  • Living Will (or Instruction Directive): Focuses on directly stating your wishes about refusing specific medical treatments in defined future scenarios (e.g., terminal illness, permanent unconsciousness). You are giving the instructions.
  • Healthcare Proxy (or Durable Power of Attorney for Healthcare, or Substitute Directive): Focuses on appointing a trusted person to make healthcare decisions on your behalf if you lose capacity. Someone else is making decisions for you, guided by your values and best interests.

While healthcare providers are ethically and increasingly practically expected to respect valid Advance Directives, disagreements can sometimes arise in complex or ethically challenging situations.

  • Open Communication: Encourage open communication between your proxy (if appointed), your family, and your healthcare team to clarify wishes and address concerns proactively.
  • Ethical Consultation: Hospitals and healthcare facilities often have ethics committees that can be consulted to help resolve ethical dilemmas and interpret advance directives.
  • Second Opinions: Your proxy (or family) can seek second medical opinions if there are disagreements about the appropriateness of treatment.
  • Legal Recourse (Rare but Possible): While challenging to enforce directly in court currently, in extreme cases of disregard for a clear and valid Advance Directive, legal options could be explored, although this is a complex and rare scenario. Prevention through clear, well-drafted documents and proactive communication is always the best approach.
  • Aucamp Attorneys can help you draft Advance Directives that are clear, ethically informed, and designed to minimize potential for misinterpretation or challenges.

A Healthcare Proxy is a different kind of Advance Directive.  Instead of giving direct instructions about treatment refusal (like a Living Will), it:

  • Appoints a Decision-Maker: You name a specific person (your "proxy") to make healthcare decisions for you if you become unable to do so yourself. This person could be a spouse, partner, family member, or trusted friend.
  • Delegates Authority: You give your chosen proxy the legal authority to make healthcare decisions on your behalf.
  • Broader Decision-Making Power: A Healthcare Proxy can make a wider range of healthcare decisions than just refusing treatment. They can consent to treatment, choose between options, and make overall care decisions based on their understanding of your values and best interests.
  • Flexibility: Healthcare Proxies are more flexible as they allow for real-time decision-making by someone who can respond to changing medical situations that a static Living Will might not anticipate.
  • In essence:
    • Living Will = You instruct: "If X happens, I refuse treatment Y."
    • Healthcare Proxy = You appoint: "I trust person Z to make healthcare decisions for me if I can't."
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Living Wills also known as an Advanced Directive

Planning for the future isn’t just about deciding what happens after we’re gone—it’s also about making our wishes clear while we’re still here. A living will is a vital document that outlines our medical treatment preferences in situations where we can no longer communicate them ourselves. Especially for those facing serious illness, having a living will ensures that our healthcare decisions align with our values and personal choices, giving both us and our loved ones peace of mind.

What is a Living Will  (Advanced Directive)? 

A Living Will is a legal document that sets out your wishes for your healthcare when you cannot share them yourself. It guides your family and healthcare providers when you are not in a condition to make decisions or express your wishes.
Living Wills are not yet recognised in South African statutory 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. Although they are not recognised as legally enforceable instructions in South African law, they are ethically acceptable.

Aucamp Attorneys: Living Wills in South Africa – Taking Control of Your Future Healthcare Decisions

Planning for the future includes considering not just your assets, but also your healthcare wishes, especially for end-of-life scenarios.  A Living Will, also known as an Advance Healthcare Directive, is a powerful tool that allows you to express your preferences regarding medical treatment now, for a time when you may no longer be able to communicate your decisions.  At Aucamp Attorneys, we help you create Living Wills that are clear, legally considered, and truly reflect your values.

How Do You Create a Living Will with Aucamp Attorneys?

Drafting a Living Will is a deeply personal process, and professional guidance is invaluable to ensure your wishes are properly documented and legally respected.  When you work with Aucamp Attorneys to create your Living Will, we will guide you through these Essential Considerations

  • Personalized Legal Consultation We begin with a detailed consultation to understand your unique healthcare values, beliefs, and wishes regarding medical treatment in various scenarios.
  • Consideration of Medical Treatments We'll discuss different types of medical treatments, particularly those relevant to end-of-life care, such as:
    • Life support and artificial ventilation
    • Artificial nutrition and hydration (feeding tubes)
    • Resuscitation (CPR)
    • Antibiotics and other medications
  • Defining Your Comfort and Care Preferences We'll help you articulate how you wish to be treated and kept comfortable throughout your healthcare journey, ensuring your Living Will reflects your desired level of intervention and comfort.
  • Addressing Your Values Your Living Will is an opportunity to communicate your values and how you wish to be treated at all stages of care, ensuring dignity and respect are upheld, even in critical situations.

Why Seek Legal Expertise from Aucamp Attorneys for Your Living Will?

While you might find generic templates, engaging a legal practitioner like Aucamp Attorneys offers vital advantages

  • Legal Validity and Clarity We ensure your Living Will is drafted to be as legally sound as possible within the current South African legal framework, minimizing ambiguity and maximizing its chances of being honored.
  • Personalization and Guidance We provide tailored advice and help you express your wishes clearly and comprehensively, going beyond simple templates to address your specific concerns and circumstances.
  • Witnessing and Formalities We ensure all recommended formalities for signing and witnessing your Living Will are correctly followed, strengthening its evidentiary value.
  • Integration with Healthcare Proxy We can advise you on the benefits of creating both a Living Will and a Healthcare Proxy (also known as a Durable Power of Attorney for Healthcare) for comprehensive advance care planning.

Do You Need a Living Will Even if You Have a Healthcare Proxy?

Yes, in most cases, having both a Living Will and a Healthcare Proxy is the most comprehensive approach. They serve different but complementary purposes:

  • Living Will (Instruction Directive) This document directly states your wishes and instructions regarding specific medical treatments you would want to refuse in defined circumstances (e.g., permanent unconsciousness, terminal illness). It speaks for you directly when you cannot.
  • Healthcare Proxy (Substitute Directive) This document appoints a trusted person to make healthcare decisions on your behalf if you lose the capacity to do so. This person (your "proxy") can make decisions in situations not explicitly covered by your Living Will or when interpretation of your wishes is needed.

A Healthcare Proxy cannot replace a Living Will because

  • Power of Attorney Limitations A general Power of Attorney typically becomes invalid if you lose mental capacity. A Durable Power of Attorney for Healthcare (Healthcare Proxy) is specifically designed to remain in effect if you become incapacitated, precisely when healthcare decisions need to be made.
  • Different Focus A Living Will expresses your direct instructions. A Healthcare Proxy empowers someone you trust to make decisions based on their understanding of your values and best interests, potentially interpreting or expanding upon your Living Will or making decisions in areas your Living Will doesn't cover.

Feature Living Will (Instruction Directive) Healthcare Proxy (Substitute Directive)
Nature of Authority Direct Instructions from You Delegation of Decision-Making
Focus Refusal of Specific Treatments Broad Healthcare Decisions
Flexibility Less Flexible (Static Document) More Flexible (Proxy can adapt)
Legal Status (SA) Ethically Accepted, Legally Grey Area Ethically Accepted, Legally Grey Area
Best Used For Stating clear "no" to specific treatments Appointing a trusted decision-maker

Having a Living Will and/or Healthcare Proxy provides crucial benefits

  • Control Over Your HealthcareEnsures your wishes regarding medical treatment are respected, even when you can no longer speak for yourself.
  • Relief for Loved Ones Provides guidance and clarity for your family and loved ones during stressful times, easing their burden of making difficult decisions on your behalf.
  • Avoid Unwanted Interventions Helps prevent unwanted or aggressive medical treatments you might not desire, ensuring your end-of-life care aligns with your values.
  • Reduces Potential for Disputes Clearly documented wishes and a designated decision-maker can minimize disagreements among family members or between family and healthcare providers.

Reviewing and Updating Your Living Will (The "Five Ds")

Life changes, and so might your healthcare wishes.  Aucamp Attorneys recommends reviewing your Living Will every few years, and especially when any of the "Five Ds" occur:

  1. Decade At the start of each new decade of your life.
  2. Death After experiencing the death of a loved one.
  3. Divorce Following a divorce or major family change.
  4. Diagnosis Upon diagnosis of a serious health condition.
  5. Decline When you experience a significant decline in an existing health condition, particularly affecting your independence.

Validity and Ethical Considerations – Ensuring Your Wishes are Respected

For your Living Will to be ethically respected and practically effective in South Africa, certain conditions should be met, which Aucamp Attorneys will help you address:

  1. Age and Capacity You must be 18 years or older and have mental capacity when making the directive.
  2. Informed Consent You should be fully informed about your health condition and treatment options when making your decisions about refusing treatment.
  3. No Change of Mind Healthcare providers will need to be reasonably satisfied that you haven't changed your mind since creating the Living Will. Regular review and updates strengthen this.
  4. Ethical Guidelines While not legally binding legislation yet, ethical guidelines from SAMA and HPCSA strongly support honoring valid advance directives, reflecting a growing consensus within the medical community.

Navigating Living Wills and advance directives can feel sensitive and complex.  Let Aucamp Attorneys provide you with the expert legal guidance and compassionate support you need to create these vital documents.  We can help you ensure your healthcare wishes are documented clearly, legally sound, and will be respected, giving you and your loved ones peace of mind.

Contact us for a consultation to discuss Living Wills and Healthcare Proxies and take control of your future healthcare decisions.