Why do you need a living will?

By Fiona Zerbst

Unexpected twists and turns in life can leave you too ill or injured to communicate or make healthcare decisions for yourself.

A living will sets out any medical treatment or interventions you should receive if you are critically ill, in a coma, brain dead or close to death, to name a few possible scenarios.

Although it’s helpful to talk about our end-of-life values, most of us prefer to avoid these discussions, which means our loved ones may not know what our wishes are. This article examines the importance of advance health planning, which includes drawing up a living will.

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What does a living will contain?

Dr Linda Holding, a doctor trained in palliative care, and founder of South Africa’s first online living-will service, Swansong, says, “The recent Covid-19 pandemic has shown us that being prepared for your death is more than simply having a will that details how your finances and property will be split up.”

“While your last will and testament is a valuable tool for your family after your death, a living will provides them with guidance before your death, and deals with your medical care and treatment decisions.”

Anyone who is of sound mind and over the age of 18 can have a living will drawn up. There is no precedent for end-of-life decision making before that age, although the age of medical consent to treatment is 12. Decisions in such cases would need to involve parents, guardians or caregivers.

“A living will is not recognised by South African law, however, the law does recognise that you have the right to accept or decline treatment,” says Fred Wagenvoorde, a paraplanner at Fiscal Private Client Services. “This means it is a valuable document to assist in making decisions on your behalf.”

Holding says a living will can’t include instructions for euthanasia or assisted suicide as this remains illegal in South Africa. “However, refusal or withdrawal of treatment is not regarded as assisted suicide, because limiting treatment allows a disease to take its natural course,” she says.

A key element of a living will is nominating a healthcare proxy. This is a substitute decision maker who ensures your preferences are respected, and oversees whether healthcare is provided, withheld, or withdrawn.

“It’s important that you can trust your proxy to follow your wishes, and you should communicate these wishes to them clearly and in advance,” says Holding.

What happens if you don’t have a living will?

Not having a living will in place can put family members in a difficult position regarding your medical treatment, particularly if they are not in agreement about a course of action. It’s also difficult for your loved ones to make rational decisions in emotional moments.

Keeping a patient on life support can have financial repercussions, and a patient may not have medical insurance or sufficient family resources to maintain their care.

“The cost of keeping a patient alive, when there is no hope of recovery, can place a significant burden on the family of the patient which, in turn, can erode the value of the patient’s estate,” Holding points out. “A living will can protect existing financial plans from panicked end-of-life decisions that are not beneficial and waste financial resources.”

End-of-life decision making

Before you draw up a living will, you should ideally go through some end-of-life decision making with a healthcare professional, says Dr Barbara Matthews, a palliative care specialist.

“Palliative care can provide pain and symptom control when certain medical interventions, like scans or chemotherapy, are no longer appropriate or will be futile.”

Holding says you should start thinking about a living will before there is an urgent need, but it’s especially important if you’re older, you have a chronic illness or multiple diseases, you have an early cognitive impairment, or you are approaching the end of your life.

“Creating a living will doesn’t need to be complicated, but it does require careful consideration, and expert guidance is advised,” she says.

“Talking about a healthcare crisis, being diagnosed with a serious illness, or thinking about the end of life can seem intimidating, but it shouldn’t be avoided because it’s not about your death – it’s about how you want to love before your death.”

Who should have a copy of your living will?

“Anyone who is part of your care team should receive a copy,” says Holding. “Some examples would include your GP, your designated healthcare proxy, family, friends, an attorney, your financial adviser, and a faith leader. If you keep your important personal documents online, you can keep your living will in an electronic living will repository.”

Matthews adds that, if your family and healthcare team are aware of your wishes, a living will simply confirms what they already know, and there will be no confusion regarding your choices and preferences. This underlines the value of having end-of-life conversations ahead of time. 

“As with all wills, it is important that you review your living will regularly to keep the document in line with your most current wishes,” says Wagenvoorde.

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