Live and let die...

A living will is certainly not a topic for polite conversation, but there are reasons why brokers should broach the subject with their clients.

A living will essentially provides evidence of a person's wishes against the artificial prolongation of life when the person is unable to express his or her will in this regard. It serves as a directive to family members, doctors and hospitals in making decision regarding medical treatment.

The right to choose

The Constitutional right to life, the right to human dignity and the right to bodily and physiological integrity extends to every South African.

"In terms of the law, a healthcare provider is obliged to inform the user of healthcare services of the user's health status, diagnostic and treatment options - including the benefits, risks, costs and consequences of each option - and the user's right to refuse health services with an explanation of the risks and implications of that refusal," explains Patrick Bracher of Deneys Reitz Inc.

"A health service may not be provided to a user of any health service without the user's informed consent. Where the user is unable to give informed consent, the consent may be given or refused by a person mandated by the user in writing to grant consent on his or her behalf or authorised by law to do so. Where the user cannot consent and no mandate has been given, the consent can be given or withheld by the spouse or partner of the user, or in their absence, a parent, grandparent, adult child, brother or sister - in that order."

What is a living will?

"The living will should be in a form which states your own wishes as well as authorising someone else to express your wishes when you cannot do so yourself," says Bracher.

These healthcare wishes include:

1.Consent or refusal to any treatment or procedure to diagnose, maintain or otherwise affect your physical or mental condition.
2.Selection or dismissal of heath care providers and institutions.
3.Approving or disapproving specific tests, surgical procedures or medication programmes.
4.Approving or disapproving the provision, withholding or withdrawal of artificial nutrition, hydration or other forms of support or resuscitation.
5.Donation of organs or tissues and disposing of remains.

Does it condone euthanasia?

Bracher explains that a living will can never be used for assisted suicide or euthanasia which is not permitted under South African law in terms of any court decision thus far. "It is notionally possible that euthanasia could be permitted in limited circumstances under the constitutional rights to life, dignity, physical and psychological integrity. The probabilities are, however, that the courts will not step into this minefield and it is something that should be dealt with by the legislature."

Drafting a living will

The living will is a separate document not related to the Last Will and Testament. Willie Fourie, CEO of PSG Konsult Trust explains that the Last Will and Testament dictates the administration of a deceased person's estate whereas the living will dictates the further existence or death of a person."The efficacy of a living will is obviously negated by including it in a Last Will and Testament which is often only read, and which only comes into effect, after the death of the person."

Since it is not a valid, binding legal document, anyone can draft a living will, provided that they have the requisite legal capacity, fully understands the decision making processes undertaken and appreciates the consequences.

"There are no strict rules in our law concerning what constitutes a valid or invalid living will," says Neil Kirby of Werksmans Attorneys. "In the reported matter of Clarke v Hurst NO & Others, the court recognised both a written living will and utterances by the patient during his life that indicated that he held strong views on the individual's right to die with dignity."

Nevertheless, Fourie believes that the living will should be drafted by an estate planning advisor or attorney, since it deals with the ending of human life and has many legal implications that must be taken into consideration. "The wording of the living will needs to clearly set out the circumstances under which it should be exercised."

Spreading the word

Living wills kept in a safe at home will be valid, but will be of little value if it is not found at the time when it is needed. "It is advisable to leave clear instructions as to the whereabouts of such a will in order to ensure that those that are empowered to make decisions concerning the testator's life, in circumstances where the living will is applicable, are aware of the existence of the document, its whereabouts and its terms and conditions," says Kirby.

Fourie further recommends that a number of copies are signed and handed to the estate or financial advisor, attorney, doctor and a member of the family, and that a copy is filed with the South African Living Will Society.

Should brokers get involved?

Bracher points out that there is no duty, requirement or even recommendation that financial advisors should talk to their clients about a living will. "In addition, The South African Medical Association has had a policy since 1994 that medical practitioners should draw the attention of patients to living wills if there is a real possibility that their circumstances may lead to the need for instructions to be given on the patient's behalf for treatment," he adds.

Fourie says that most people have not given any thought to this, and it should be part of the discussions when drafting a Last Will and Testament to ensure that the client is at least aware of the possibility and to enhance the advisor/client relationship.

"A financial advisor should, indeed, engage with the client in respect of the drafting of a living will," says Kirby. "The client must understand that due to medical technology, he or she may, unfortunately, find him or herself in a position where he or she is kept alive by virtue of machinery in a hospital or clinic. Such circumstances and care may be expensive to maintain and may drain the proceeds of the testator's estate to the detriment of the testator's heirs."

The better option

"A living will is an informal document of limited value," says Bracher. "There is another more satisfactory way of dealing with healthcare decisions.

"Considering the legalities surrounding ‘informed consent' in the provision of healthcare as discussed in the opening paragraphs, everybody should mandate a specific person in writing to give informed consent to the provision of health services if the person giving the mandate is unable to give informed consent at the time the healthcare service is needed. Where the patient is a child, consent of the parent or guardian or other authorised person is required for an operation to a person under 18 years of age and for any other medical treatment for a child under the age of 14 years.

"Therefore a written mandate given to a specific person entitling them to give informed consent, or refuse consent, when you cannot do so yourself is a far better document than a living will."