Understanding Medical Proxy vs. Living Will in South Africa: Navigating Legal Waters

When it comes to planning for unforeseen medical situations where you might not be able to make decisions for yourself, understanding the legal instruments available to express your healthcare wishes is crucial. In South Africa, two key mechanisms—Medical Proxy and Living Will—provide pathways to assert your healthcare preferences. Though they share a common goal, their legal standing, implications and operational dynamics differ significantly. Let's delve into the nuances of each, with a special focus on their applicability within the South African legal framework.

What is a Medical Proxy?

A Medical Proxy, also known as a Healthcare Proxy or an Advanced Healthcare Directive, is a legal designation where you appoint someone you trust to make healthcare decisions on your behalf if you're incapacitated. This person, your proxy, will have the authority to engage with healthcare providers and make decisions that align with your known wishes or, if those are not explicitly known, your best interests.

In South Africa, the concept of a Medical Proxy is recognized under common law principles, particularly those related to the autonomy of the patient and the necessity of informed consent. While there's no specific legislation that outlines the process for appointing a ‘Medical Proxy’, section 7 of the National Health Act provides that consent regarding treatment may be given by someone who has written authorisation to do so from the person requiring treatment. These provisions seem to recognise the principle that a person may, in writing, create an advance directive which appoints a proxy to take healthcare decisions on his or her behalf when he or she no longer has the required mental capacity.

The appointed proxy's authority is thus recognized by healthcare providers, but like living wills, there can be limitations, especially if there are disagreements among family members or between the proxy and healthcare providers about the best course of action.

What is a Living Will?

A Living Will, in contrast, is a document that specifies your healthcare preferences, especially concerning end-of-life care, should you become unable to communicate your wishes. It typically includes instructions on the acceptance or refusal of medical treatments, such as life-sustaining measures.

Similar to a Medical Proxy, Living Wills in South Africa do not currently have a dedicated legal statute, as whilst the National Health Amendment Bill deals with living wills, it has not been made law. Thus, currently their validity stems from common law, particularly the principles surrounding patient consent and autonomy. The South African Medical Association (“SAMA”) acknowledges Living Wills as expressions of a patient's healthcare preferences and advises healthcare providers to respect these documents. However, the enforceability of Living Wills is somewhat ambiguous and largely dependent on the clarity of the document and the specific circumstances at hand.

Key Differences and Considerations

• Nature of Authority: A Medical Proxy involves delegating decision-making authority to another individual, whereas a Living Will involves direct instructions from the patient. This fundamental difference impacts how healthcare decisions are made in critical situations.

• Flexibility: Medical Proxies offer more flexibility, allowing the appointed individual to make real-time decisions based on the patient's current health status and unforeseen medical circumstances. Living Wills, being static documents, might not account for every possible scenario.

• Legal Enforceability: Both Medical Proxies and Living Wills operate within a grey legal area in South Africa, supported by common law but lacking specific statutory backing. This can lead to challenges in enforceability, particularly in complex medical situations or where there's disagreement among family members or between healthcare providers and the patient's designated proxy or wishes.

Navigating Healthcare Decisions in South Africa

For South Africans, employing both a Medical Proxy and a Living Will can provide a comprehensive approach to healthcare planning, ensuring that your wishes are known and can be adhered to as closely as possible. It's advisable to discuss your preferences with your family, chosen proxy and healthcare providers and to seek legal advice to ensure that your documents are as clear and effective as possible.

In the ever-evolving landscape of healthcare and law, staying informed and prepared is your best strategy. Understanding the distinctions and interplay between a Medical Proxy and a Living Will in South Africa is a vital step in ensuring that your healthcare decisions remain in trusted hands, even when you're not able to make those decisions yourself.

How Barter McKellar Can Help

At Barter McKellar, we offer comprehensive legal assistance to clients seeking to create living wills and/or Advanced Healthcare Directives in South Africa:

• Legal Consultation: Our experienced attorneys provide personalized legal consultations to discuss clients' healthcare preferences, values and concerns and offer guidance on creating customized living wills and Advanced Healthcare Directive that reflect their wishes.

• Document Drafting and Review: We assist clients in drafting and reviewing living will documents and Advanced Healthcare Directives to ensure clarity, comprehensiveness and compliance with legal requirements. Our firm ensures that these documents accurately reflect clients' healthcare preferences and intentions, providing peace of mind and reassurance.

• Legal Support and Advocacy: We provide ongoing legal support and advocacy to clients and their families in navigating healthcare decision-making processes, communicating with healthcare providers and ensuring that these documents are implemented effectively and respected.

Conclusion

In conclusion, living wills and Advanced Healthcare Directives serve a vital purpose in South Africa by enabling individuals or their duly appointed proxies to express their healthcare preferences and wishes, even in situations of incapacity. At Barter McKellar, we understand the importance of these documents. For personalized legal assistance with creating living wills tailored to your needs and circumstances, contact Barter McKellar today.