At LegalWills.co.za we offer full estate planning services including the Last Will and Testament, financial Power of Attorney and what we’ve always called the “Living Will”. This service also includes a Healthcare Power of Attorney so you can appoint someone to make healthcare decisions on your behalf – a Healthcare Proxy – and a Healthcare Directive that outlines your healthcare wishes if you’re unable to communicate them yourself. Together these are known as your Advance Directives.
We recently received input from Pashta MaryMoon, Director of the CINDEA – Canadian Integrative Network for Death Education and Alternatives. She mentioned we use the term “Living Will”, which is more commonly used in the US than in Canada or South Africa. After discussion we thought it would be good for Pashta to share with our community about the terminology used in advance care planning.
Advance Care Planning Terminology
As Advance Care Planning (ACP) evolves there is a lot of confusion around terminology. Different regions use different terms for the same document or the same term for different documents.
Some ACP documents like Advance Directives and Representation Agreements are presented as ‘either-or’ choices, as if they’re mutually exclusive when in fact they’re complementary. Others suggest you can combine them but they’re still separate legal documents. Documents with the same name can be very different depending on the region and context.
Copyright: zimmytws / 123RF Stock Photo
Advance Care Planning (ACP)
ACP is about preparing for a future scenario where you might not be able to communicate or give informed consent because of a coma or dementia. The focus is on medical and personal-care decisions – Advance Directives, Representation Agreements and other ways to express personal-care wishes. This also includes Power of Attorney arrangements. Wills and estates are not part of ACP but can be tangentially related.
Living Will
In South Africa a Living Will is where a person expresses their healthcare wishes in a scenario where they can’t communicate. Although not legally binding doctors will take them into account when making medical decisions. This document is important for expressing healthcare wishes but not estate matters.
Advance Directives (Also Known as Personal Directive/Health Care Directive)
Advance Directives are legal documents that detail medical instructions and act as ‘informed consent’ for specific treatments in advance of potential medical situations. These must be prepared when a person is of sound mind and only come into effect when a person can no longer give informed consent – permanently or temporarily.
Copyright: enigmangel / 123RF Stock Photo
Healthcare Proxies
South African law doesn’t recognize healthcare proxies but you can appoint a trusted person to act as a liaison with healthcare providers. This practical approach although not legally binding ensures someone will communicate your wishes.
Power of Attorney
In South Africa a Power of Attorney is usually concerned with financial and legal matters and becomes invalid if the person loses mental capacity. So it can’t be used for healthcare decisions once someone becomes incapacitated. The ‘Enduring Power of Attorney’ doesn’t apply here as it would in other jurisdictions.
Copyright: rufous / 123RF Stock Photo
Summary
Pashta MaryMoon, CINDEA Director, shares her insights to help clarify advance care planning. CINDEA combines ancient death traditions with modern life, to revalue the cycles of life and death. This is part of the broader movement to redefine what we mean by ‘a good death’ for those who are dying.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
- The Ultimate Guide to Preparing a Will – 2024 - 19 November 2024
- Intestate Succession in South Africa | What Happens If I Die Without a Will? How LegalWills Offers an Affordable Solution - 15 February 2024
- A Guide to Writing a Will for Young Adults in South Africa - 23 September 2022
