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My Death, My Decision: The Living Will

As Christopher Bullock so aptly stated back in 1716 “there are two certainties in life: death and taxes”. What he possibly didn’t account for was the fact that at some stage in your life you would be able to have a say over the former, in certain circumstances that is. Introducing the Living Will…

What is a Living Will?

A Living Will is a declaration which is signed during your lifetime when you are in a competent physical and mental condition, and which ensures that, should there be no reasonable chance of your recovery and you do not wish to be kept alive by artificial means, your last wishes would be carried out. In other words, the Living Will represents your wish to refuse any medical treatment when you may no longer be able to express yourself.

When Would You Need A Living Will?

Living Wills have increasingly become an important part of estate planning in South Africa. Creating a Living Will is completely at the discretion of the testator or testatrix. The Will has been designed in order to guide medical practitioners in cases of patients who are in the final stages of life, for example, who are terminally ill; in a permanent vegetative state; or who are in the late phases of dementia.

What Are The Consequences of a Living Will?

Should you fall into one of the above categories, your Living Will would enable your last wishes to be carried out without any confusion arising, while, at the same time, providing that reassurance to, and relieving your loved ones from, having to make the tough and heart-breaking decisions on your behalf. It would also help to alleviate any pain and suffering you may be experiencing without being able to effectively communicate with your loved ones or doctors.

Misconception: A Living Will Is Not Assisted Suicide

In the recent ground breaking judgment in the High Court of South Africa, Justice Fabricius granted Advocate Robin Stransham-Ford’s request for a suicide under medical administration. While highly contested, this judgment could be a turning point in South African law and is currently subject to an appeal by the State. What this judgment has done is pave the way for others to approach a court on their own merits and encouraged the legislature to consider revising the laws relating to assisted suicide in the future. However, a Living Will cannot include directives for physician-assisted suicide or euthanasia at this point in time.

Please Note:

It is imperative that your medical practitioner is aware of your Living Will and has access to it, as he or she will be bound to carry out your wishes in this regard.

More than one Living Will should be signed and placed in the care of a family member or your attorney for safe keeping.

If you need more information or legal advice on the subject, please contact Abrahams & Gross Attorneys for assistance.

t.  021 422 1323    |    e.   info@abgross.co.za

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