Living wills

What if a person does not have the capacity to make his own difficult medical decisions?

Living wills

Source: Mervin Messias

Attorney, Johannesburg

What if a person does not have the capacity to make his own difficult medical decisions?

The result may be that doctors, Courts, or others may take steps that are the opposite of what the person would have wanted. To forestall these consequences one could prepare and execute a “living will”. A living will can help a person clarify his decision about what quality of life he/she wishes to maintain and could appoint a specific person to make any necessary decisions in order to carry out his/her desires in the event that he is unable to do so.


A  living will is an advance document reflecting a person’s wishes regarding the type of medical care he/she would or would not want if and  when:

  • He/she lacks the physical capacity to communicate his/her refusal; or

  • He/she lacks the mental capacity to refuse treatment; and in either case
  • His/her quality of life is very poor; and there is no hope of recovery or even of significant improvement.

One of the most important roles of a living will is that it may be the only written evidence of what a person’s wishes are. Thus, the living will should be drafted as clearly and precisely as possible.


A statement made by someone in good health typically written a long time in advance to cover all conceivable future eventualities; a statement made by a sick person, whose illness may be terminal. A statement in these circumstances may be better informed, more realistic, more relevant and more specific than one made from a perspective of good health; a statement of personal life-and-death values (such as desires of quality of life, religious convictions and whether he/she wants to refuse or not refuse medical treatment) but this may place a considerable burden of interpretation on his/her family anal on a busy medical team.


A request for basic care to be withdrawn or a request for voluntary euthanasia or physician assisted suicide. Problems may arise when there is conflict between the state’s interest in preserving life and a person’s desires and rights.

Medical procedures can be extremely costly. A person’s financial and estate planning can be jeopardized when his/her last months or years are spent in agony or without the minimal quality of life he/she desires, and when large health care costs deplete his/her estate.


If a person refuses basic care; basic care must continue until a person dies, even though medical treatment may cease; if they believe that complying with a person’s wishes will harm someone else, an obvious example being an unborn child; if a person is suffering from an infectious disease which might put other people at risk if medical treatment were to be withdrawn.

Doctors should not be asked to do anything which is not allowed by their code of practice.  If the situation does not exactly correspond to the circumstances described in a person’s living will, the medical team would still be guided by the spirit of the living will. They would also contact anyone named in the living will, as well as the GP, to try to clarify the person’s wishes. It is sensible for a person to review his/her living will regularly in the light of his/her changing feelings and the advancement of medical science.

Religious doctrines may specifically address what can be done medically to sustain, or not sustain, life. However indifferent a person may feel about the effects of the tenets of his/her own faith on these decisions, it can be a terrible mistake not to discuss these issues with his/her clergy. The person’s family’s religious convictions should also be considered. It may be possible for a person to carry out his/her wishes by making only modifications and still be within the prescribed limits of his/her faith.

The consensus of the religious considerations concerning living wills seems to be that while euthanasia and physician assisted suicide would always be sinful, refusing treatment may be permissible.


It is impossible to generalize, as there are over 500 different Buddhist groups, but some Buddhist advocate living wills.


Cautious acceptance: the conclusion from the spirit of Jewish Law is that while a person may not do anything to hasten death, under special circumstances of suffering and helplessness, he/she may allow death to come.


Asserts the right of every person to die in dignity without efforts to prolong terminal illness merely because the technology is available to do so.


When inevitable death is imminent, it is permitted in conscience to take the decision to refuse forms of treatment that would only secure precarious and burdensome prolongation of life.


Islam permits living wills. However, in addition to refusing futile treatment, medicines must not contain animal, or alcoholic ingredients, the patient’s body is to remain modestly covered at all times and unnecessary post-mortems are not to be carried out.

A person should provide the name and contact details in his/her living will of a clergy member to be consulted for interpretation of his/her religious beliefs, and, as a backup, the name of a religious organization or institution.

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