What is a living will and should you have one?

A “living will” is a declaration or an advance directive which will represent a patient’s wish to
refuse any medical treatment and attention in the form of being kept alive by artificial means
when the patient may no longer be able to competently express a view. This is not a
testament, merely an instruction to a doctor or a relative on how to proceed with your
medical care or your wishes after you pass away.

2.2. Requirements

This is based on the Constitutional rights to bodily integrity and dignity and the right to
decline medical treatment. There is currently no legislation regulating this document.
However, the South African Medical Association has drafted guidelines for doctors on how to
proceed and interpret this document.

3. What is a power of attorney?

3.1. Definition

A written authority from one person (called the principal) in favour of another (called the
agent) whereby the principal delegates to the agent the right and power to perform certain
acts or deeds. Such a power may be special or general; and it may be revocable or
irrevocable. Once a person has died or mental capacity has diminished, it is no longer
enforceable. The alternative to this, is being appointed as a curator by the courts to manage
the affairs of a person who is no longer mentally capable of making decisions pertaining to
their well-being.

3.2. Types

3.2.1. General power of attorney

3.2.1.1. It confers general powers from the grantor to the grantee to perform and carry
out various legal acts on behalf of the grantor.

3.2.2. Special power of attorney

3.2.2.1. Serves a specific purpose in that it grants very limited and concise powers to
the grantee. In other words, it relates to a specific act or acts and nothing else.

4. What is an enduring power of attorney?

While the older person is still mentally capable, for that person to grant another person an
enduring power of attorney, which will remain valid and effective should the older person
lose some of their mental capacity.

4.1. Enforceability

Countries such as the UK, Canada, USA, New Zealand, and Australia have already
introduced enduring powers of attorney that remain in force despite the mental incapacity of
the principal. The principal – while still mentally competent – executes a power of attorney
which explicitly states that the power of attorney is to remain valid despite a decrease of
capacity which the principal may experience in the future. In the UK this is regulated by the
Enduring Powers of Attorneys Act 1985 which came into force on 10 March 1986. The Act
provides that an enduring power of attorney, is not revoked by the subsequent mental
incapacity of the donor, but once the donor has become incapable, the rights of the attorney
are limited until the power of attorney has been registered with the Court of Protection. Even
a registered enduring power of attorney may confer only limited powers on the attorney, so
that it will be necessary to ensure that the power covers an application for a grant.

In South Africa, this is currently not recognised as a form of power of attorney. The South
African Law Reform Commission has set out a report in 2004 introducing the concept,
however, there have been no developments.