There is currently a draft National Health Amendment Bill before parliament that will allow for Living Wills to be recognised and enforced. David Knott of PC Trust explains why Living Wills are important, what they do and why we should have one.
He also unpacks why a power of attorney alone is not sufficient should someone become incapacitated.
Why the draft bill pertaining to Living Wills is an important one
A draft National Health Amendment Bill is to be introduced to parliament that will explicitly allow for Living Wills to be recognised and enforced.
Currently, the National Health Act provides for the right of a person to refuse health services and that a health service may not be provided to a patient without their informed consent. This is ambiguous, and health professionals, remaining uncertain and fearing adverse legal consequences, sometimes disregard the wishes of a Living Will and continue to treat a patient against the directives.
Knott, a fiduciary expert from Private Client Trust, a division of Private Client Holdings, says that this draft bill before parliament is a good development for South African law as it will recognise and enforce one of the most important documents you will draw up in your life.
What is a Living Will and why is it important
“A Living Will states your wishes regarding life support should you be unable to communicate your end-of-life wishes yourself – such as in the case of being left in an irreversible coma,” explains Knott. “A Living Will spares your family the anguish of making life-support decisions without your input and allows you to have the last say – ensuring that your doctor understands your end-of-life wishes and treats you accordingly.”
5 Reasons why every adult should take the time to make out a Living Will – no matter how old they are
1. Speaks for you when you can no longer communicate
“The most beneficial part of having a Living Will is that it protects you in a future situation in which you may no longer communicate your wishes,” says Knott.
2. Prevents arguments between family members
A Living Will prevents arguments among family members should they disagree on what happens to you. It will be your choice and no one else’s – thereby eliminating any arguments.
3. Gives you a say over medical treatments/procedures
Knott advises that a Living Will also gives you a say over what medical treatments and procedures take place in a situation where you are ill to the point of not being able to communicate. “In this situation a Living Will asks doctors to fulfil your wishes.”
Many people would rather die than live additional years on life-support that will rack up enormous medical bills, which their family will have to pay
4. Reduce potentially crippling medical bills for your family
“Many people would rather die than live additional years on life-support that will rack up enormous medical bills, which their family will have to pay,” warns Knott. “If you do not specify this, then your family may be left paying insurmountable medical bills. To circumvent this you need a Living Will that specifies exactly what you would like to happen in such a situation.”
5. Gives you peace of mind
“Last of all, making out a Living Will gives you peace of mind. Tragic situations are hard enough and you want to know that your family, as well as yourself, will be taken care of properly in such a situation.”
Knott goes on to advise that Living Wills have moved away from simply focusing on specific treatments and medical procedures to also focusing on patient values, personal goals, and health outcome states.
“For example, a Living Will might designate an agent to make care decisions; dictate what kind of life support treatment that the patient does or does not want; discuss pain management, personal grooming and bathing instructions; address how the patient wants to be treated, including religious, spiritual, and emotional support; and detail funeral or memorial plans.”
“Many are still of the view that a general power of attorney will suffice if they are mentally incapacitated or in a coma following an accident. Unfortunately a power of attorney becomes invalid the moment the grantor of that power of attorney cannot exercise his/her judgement,” warns Knott.
A power of attorney becomes invalid the moment the grantor of that power of attorney cannot exercise his/her judgement
“The last thing you want to do is leave your family with impossibly tough decisions and crippling bills to pay should you end up in such a dire medical condition. Get a Living Will drawn up and file it with your regular medical practitioner and trusted advisor. That same advisor should be consulted to ensure that the documents in your Living Will are binding and not ambiguous,” concludes Knott.
For more information contact Private Client Holdings on 021 671 1220.