COPE has recently introduced a private member’s Bill to parliament seeking to clarify the legal status and enforcability of so-called ‘living wills’ and durable powers of attorney. These documents seek to give voice to a person’s wishes upon their loss of capacity to decide on their medical care themselves. Typically, these documents are drawn up when a person is of full legal capacity, but become relevant when a person loses consciousness and a decision needs to be taken on the extent to which medical practitioners may go to keep them alive.

Living wills and durable powers of attorney

A living will seeks to give direction as to what medical intervention ought to be allowed after the person concerned has lost legal capacity to decide, and it can also give direction as to the use of a person’s body parts after death. A durable power of attorney seeks to give someone else the power to decide upon such things on behalf of the person granting it.

Under South African law, the principle is that once a person has lost legal capacity, any power of attorney granted in favour of another person ceases be of effect (because, the law reasons, you can only grant a power of attorney when you yourself have legal capacity). A durable power of attorney (recognised in some jurisdictions) allows a person to continue to act under it event though the person who granted it has lost legal capacity.

While living wills are more often than not given effect to upon a person’s loss of legal capacity, the legal position surrounding them is unclear. The type of situation also gives rise to complex moral and philosophical questions. We will watch the process of the Member’s Bill with interest.

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