While in South Africa a living will is not recognised in Law, the Law Commission does have living wills on their agenda for consideration. “A living will provides a family with an instruction to turn off life support machines, when there is no reasonable possibility of their loved one recovering,” says Willie Fourie, Head of Trusts and Estates at PSG Wealth.
“Medical doctors determine whether there is a real prospect of recovery or not. The family is guided by medical personnel and makes the decision to end life support from there.”
How a living will would play out
A living will can play an important role and may help to prevent prolonged suffering for someone who is in a vegetative state. “Its purpose is to prevent prolonged suffering for someone who cannot communicate their wishes to their family at that time,” Fourie adds.
A living will might bring closure and relieve stress, anxiety or feelings of guilt for family members who may be confronted with difficult choices. At a practical level, it can also save money, as it can be very costly to keep someone on life support machines. It should also be noted that it remains at the discretion of your next-of-kin to implement the living will or not.
A living will must be clearly distinguished from assisted death, which is legal in places like Belgium, but not here,” Fourie adds. “A living will must be drafted while you are able to still sign it. However, this is a completely separate document to your last will and testament, and expresses your wishes, should you reach a stage where you are kept alive artificially for prolonged periods.”
A place - and necessity - for both
Whether or not living wills are put into place, they do not replace a last will and testament, which is arguably the more important of the two as it deals with everything you have accumulated while alive, once you are no longer living. “Apart from legal stature, the main difference between them is that the one deals with your life and the other with your assets. A living will is entirely separate from estate planning, but does come up when going through the planning process, as you imagine what could happen.”
Therefore, you need to communicate the existence of a living will to your family or your GP. You might include a clause in your last will and testament, but it’s better to keep it separate. If you feel strongly about not being kept alive artificially, it is best that your position is known and documented well in advance. In addition, remember that your last will and testament should also be in place well before the need arises, to ease the unwinding of your estate in line with your wishes.
Keep in mind that once you’re already hospitalised, it can be difficult to arrange personal administration to set your last wishes in motion. This is why your last will and testament should be prioritised well in advance. Remember that if you die without a valid will, your estate will be divided in terms of the provisions of the Intestate Succession Act (the legislation determines whom of your intestate heirs will inherit from your estate).
“This would be a terrible misfortune for your loved ones and complicated to rectify once you’re gone, so planning ahead, with a robust estate plan that addresses difficult days that inevitably come, gives you the power to positively take control of how you want your loved ones to be left behind,” says Fourie.
Keep in mind that it’s also important to note any funeral or burial wishes in the process too.
Capturing your final wishes is always best done with professional oversight from a FPSA (Fiduciary Practitioner of South Africa). “Wills can be complex structures that can actually become more complicated, the simpler you try to make them, but professional assistance from a qualified fiduciary adviser can save you a lot of heartache, in more ways than one,” Fourie concludes.