When one thinks of a will, the first thing that comes to mind is probably a last will and testament. This type of will expresses a person’s wishes after they have died.

However, a living will, despite sharing some similarities with a last will and testament, is not the same thing. It can be described as a legal document outlining an individual's preferences for medical decisions in the event they are unable to communicate these wishes themselves. It can be a very helpful tool for family members and healthcare providers when they are faced with making medical decisions on someone’s behalf.

Validity requirements for a living will
Like most legal documents, certain requirements must be met for the document to be considered valid and binding. According to the Living Will Society of South Africa and the South African Medical Association, there are four requirements which must be met for a living will to be valid.
1. The person making the living will must be 18 years or older.
2. At the time of making the living will, the person must have the necessary mental capacity.
3. The person making the living will should only be allowed to refuse medical treatment if they have been fully informed of the condition
and the proposed treatment thereof.
4. The doctor treating the person must be satisfied that they have not changed their mind.

Requirement 1:
This requirement is very straightforward. A living will can only be valid if the person who made such a will is 18 years or older.

Requirement 2:
This requirement states that a person must have the necessary mental capacity to make a living will, which means that they must understand the decisions they are making.

Under normal circumstances, proving that an individual has the necessary capacity is not a difficult task, however, this becomes more complicated if the individual is elderly or has an intellectual disability.

An individual’s mental capacity can be assessed in several ways and by several professionals such as a doctor, psychologist, or psychiatrist.

Requirement 3:
The third requirement holds that a person may only refuse medical treatment where they have been informed of their condition and the possible treatment thereof. 

This requirement will be unproblematic where an individual has a chronic or terminal illness and decides to draft a living will after finding out their diagnosis. In this instance, the individual is likely to have discussed all possible treatments with their healthcare provider and are properly informed. 

However, this can become slightly more problematic when a person suddenly becomes ill or in case of an emergency.

Requirement 4:
This requirement is focused on the subjective opinion of a specific healthcare provider. Doctors have an obligation to protect their patients’ lives, subject to certain limitations of course. As a result, withholding lifesaving treatments will have to be carefully considered by healthcare providers.

The subjective nature of this requirement means that the individual has less control. However, some steps can be taken to assist healthcare providers in their decisions. For example, one can ensure that their living will has recently been attested to. The more recently a living will has been drafted and signed, the less likely healthcare providers are to question a patient’s possible change of heart. This can be particularly helpful where the living will has been signed after life changes in an individual’s life such as getting married or having children.

Formal requirements for a living will
There are no prescribed requirements for the format of a living will. However, some important details should be included such as:
1. Full names as they appear on the individual’s identity document.
2. The current residential address of the individual.
3. A list of directives and what the individual does not consent to.
4. When and where the living will was signed.
5. The individual’s signature.
6. The full names and signatures of two witnesses who were present when the living will was signed by the individual.

Should you wish to learn more about living wills or need assistance drafting living wills, Miller Bosman Le Roux Attorneys would be happy to assist you.


WRITTEN BY VICTORIA MATTHEWS
Victoria Matthews is a candidate attorney at Miller Bosman Le Roux Attorneys.

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