Written by Candidate attorney – Sumaiyah Abdulah

Estate planning during a pandemic: The importance of a living will

The rapid escalation of the COVID-19 pandemic has inevitably changed the way we approach estate planning. The pandemic has reminded us of our own mortality and has highlighted the need to ensure that our financial and legal affairs are in order in the event of serious illness or death.

Estate planning is the process of setting up a clear set of instructions about how your property and assets will be managed during the course of your lifetime and after your death. While estate planning is often viewed as only having a will in place, a proper estate plan should include at least three primary documents: a last will and testament, a power of attorney and a living will.

Although a will is extremely important, a directive such as a living will can be even more significant, especially during times of a health crisis. In light of the current pandemic, it’s never been more important to have a living will in place.

WHAT IS A LIVING WILL?
A living will is a directive that tells physicians what your personal wishes are about end-of-life medical care. A living will becomes effective once a doctor decides that a person is incapacitated and unable to communicate his decisions regarding life-sustaining treatment. In a living will, a person may state, among other things, his wishes regarding cardiopulmonary resuscitation, artificial and/ or mechanical life support and tube feeding.

WHY IS IT IMPORTANT FOR A PERSON TO CONSIDER HAVING A LIVING WILL?
These are some of the reasons why an individual should consider having a living will:-

  1. Our right to life is closely tied to our right to dignity, entitling us to a dignified death;
  2. Having a living will in place reduces the emotional stress your loved ones would suffer when called upon to make life-or-death decisions; and
  3. The financial burden can be alleviated as being on life-support, especially when there is no reasonable prospect of recovery, is very expensive.

REQUIREMENTS FOR A LIVING WILL
The South African Medical Association has stipulated that in order for a person to have a living will, they must be over the age of medical consent and of sound mind.

STATUS OF A LIVING WILL
The validity of a living will is a contentious issue since living wills are not legally recognised in South Africa. Doctors with a conscientious objection to withholding treatment are not obliged to comply with a directive. Doctors are, however, advised to rely on their professional judgement and approach living wills with considerable circumspection and obtain advice from the South African Medical Association when determining the applicability of a living will in a particular situation.

Parliament is currently considering the implementation of the National Health Amendment Bill which intends to amend the National Health Care Act so that advance health care directives such as the living will and the durable power of attorney for healthcare are legally recognised.

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