Who Makes Your Health Care Decisions if You Do Not Have a Living Will?

Who makes your medical decisions for you if you are unable? The answer to this question is even more difficult if the decision involves the removal of ventilators, feeding and water tubes. In these situations, friends and family of the patient have become engaged in bitter disputes over (1) who gets to make those decisions and (2) what your wishes regarding treatment would have been? 

A valid Living Will answers both of those questions. Living Wills are governed by Act 169 of 2006 (the "Act"), where they generally become effective when the subject of the living will is deemed to be in an "End-Stage Medical Condition". The Act goes on to describe such a condition as an ". . . incurable and irreversible medical condition . . . that will . . . in the opinion of the attending physician to a reasonable degree of medical certainty result in death, despite the introduction or continuation of medical treatment." Examples include brain-death, irreversible comas or other vegetative states where there are no curative treatments to make you better, but only palliative treatments (such as ventilators and feeding tubes) that prolong the process of dying but have no curative properties. With a valid Living Will, you have already declared what your wishes are regarding treatment and named who should carry out your wishes.

But what if you do not have a Living Will and are in an End-Stage Medical Condition? Because most people in such a condition are neither capable of or competent to describe their wishes and name who should carry them out, the Act allows certain people to step forward to declare themselves as your Health Care Representative. At the very least, the person generally must be able to establish that they were a close friend. If multiple individuals step forward, the Act gives priority to the following groups from highest to lowest in rank:

  • Current spouses and adult children from prior marriages,
  • Adult children,
  • Parents,
  • Adult siblings,
  • Adult grandchildren, and
  • Adult close friends.

If there are disputes among Health Care Representatives, the decision of the highest priority Representative governs. If there are multiple members of the same priority group, the decision is determined by a majority vote of that group. If no majority decision can be reached, several ethics committees from various groups may act as a dispute resolution service. In the alternative, costly guardianship proceedings may be commenced in the courts as a last resort. Of course, while such a dispute regarding care is ongoing, no drastic measures to cut off treatments to the patient may be made.  

Thus, there is a system in place for deciding about treatments and representatives should you enter an End-Stage Medical Condition without a Living Will. However, there is no way to be sure who will step in on your behalf and what decisions they will make. If you wish to plan your own fate, a valid Living Will is essential.

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