Originally published: 5 December 2014 | Last updated: 6 April 2025
TL;DR: A Living Will (advance directive) is a legal document that records your healthcare preferences for situations where you cannot communicate—such as terminal illness or permanent unconsciousness. It is separate from a Last Will and Testament. While not explicitly legislated in South Africa, Living Wills are recognised under common law and the National Health Act. Create one alongside your Will at LegalWills.co.za.
A Living Will is a legal document that specifies your medical treatment preferences if you become unable to communicate your wishes. It is distinct from a Last Will and Testament—which deals with asset distribution after death—and is an essential component of a complete estate plan in South Africa.
What Is a Living Will?
A Living Will (also called an advance directive or advance healthcare directive) is a written document that records your decisions about medical treatment in advance. It typically addresses scenarios such as terminal illness, permanent unconsciousness, or severe brain damage where you cannot express your wishes. The document instructs medical professionals about which treatments you consent to and which you refuse.
Is a Living Will Legally Binding in South Africa?
South Africa does not have specific legislation governing Living Wills, but they are recognised under common law and supported by the National Health Act 61 of 2003, which upholds patients’ rights to informed consent and refusal of treatment. The South African Constitution also protects the right to bodily autonomy. Medical professionals generally respect a properly drafted Living Will.
What Is the Difference Between a Living Will and a Last Will?
| Feature | Living Will | Last Will and Testament |
|---|---|---|
| When it applies | During your lifetime (incapacity) | After your death |
| What it covers | Medical treatment preferences | Asset distribution |
| Legal basis | Common law, National Health Act | Wills Act 7 of 1953 |
| Witnesses required | Recommended (not legislated) | Two competent witnesses (required) |
What Should a Living Will Include?
A comprehensive Living Will should address:
- Life-sustaining treatment: Whether you want mechanical ventilation, CPR, or artificial feeding in terminal situations
- Pain management: Your preferences for palliative care and pain relief
- Organ donation: Whether you consent to organ or tissue donation
- Appointed healthcare proxy: A trusted person authorised to make medical decisions on your behalf
How Does a Living Will Work With a Power of Attorney?
A Power of Attorney appoints someone to make financial and legal decisions on your behalf during incapacity. A Living Will appoints a healthcare proxy for medical decisions. Together with your Last Will, these three documents form the foundation of a complete estate plan.
How Do You Create a Living Will in South Africa?
You can create a Living Will at LegalWills.co.za as part of your estate plan. The process guides you through each medical scenario and produces a professionally drafted document. While witnesses are not legally required, having the document witnessed strengthens its enforceability.
Frequently Asked Questions
Can I create a Living Will online in South Africa?
Yes. LegalWills.co.za offers a guided Living Will creation process as part of its estate planning services.
Does a Living Will replace a Power of Attorney?
No. They serve different purposes. A Living Will covers medical treatment preferences; a Power of Attorney covers financial and legal decision-making.
Can I change my Living Will after creating it?
Yes. You can update or revoke your Living Will at any time while you are mentally competent.
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.
