During the prime of an individual’s life, you don’t give much thought to situations in which you become ill or are facing the end of your life. Sickness and death are not easy topics of conversations, but it is important for everyone to approach these heavy topics with close family members so that individuals can rest easy knowing their needs will be met if or when their health deteriorates.
Most individuals have a last will and testament as it is considered an important part of an overall financial plan and individuals typically invest a lot of thought and time into estate planning. However, a living will, for those “what if” scenarios is something that not many have in place.
“The validity and use of living wills in South Africa is contentious, but they may still play a valuable role in speaking for you when you are no longer able to,” according to Theresa Tannous, Director at Millers Attorneys. Tannous recommends that the draft of a valid Last Will and Testament is a good place to start. “The next step would be to draft a separate document, called a Living Will and which can, if necessary, be acted upon whilst you are still alive.”
What is a living will?
Tannous describes that a Living Will is a declaration or an advance directive which will represent your wish to refuse any medical treatment and attention which will keep you alive by artificial means when you may no longer be able to competently express a view because you are in a coma or vegetative state.
“In South Africa there is at present no law or legislation regarding the validity or enforceability of Living Wills. The South African Medical Association (SAMA) and the Health Professions Council of South Africa (HPCSA) have both, however, published guidelines to assist families and medical practitioners who are confronted with a Living Will,” Tannous explains.
How is a living will different from a last will and testament?
A last will and testament deals with the distribution of a person’s property and assets after death, while a living will set out the medical care preferred while the individual is still alive, but unable to competently express their wishes.
“Living wills have become an increasingly important part of estate planning in South Africa, although creating one is completely at the discretion of the individual,” Andre Basson of Brenthurst Wealth Management writes in a Moneyweb article. “t is imperative that a living will be reviewed regularly, and that both medical practitioners and family members have access to it. For ease, it is recommended that once drawn up a living will should be signed and kept in the safe custody of a doctor or attorney/fiduciary specialist.”
“Lastly, it is important to know that a Living Will can be revoked at any time,” Tannous concludes.
