How To Write A Living Will in South Africa

What is a Living Will?

The term Living Will is not really legally recognised in South Africa, but it is used around the world to describe a statement that expresses the types of medical treatments you wish to receive if you were ever unable to communicate for yourself. These are statements made in advance of losing capacity, and so have been called an "Advance Directive" an "Advance Statement" or an "Advance Decision".

You may have seen stories in the news about family members disagreeing on the best course of action for a loved one in a coma. An Advance Statement (or Living Will) adds your own voice to the discussion. You can tell your family exactly how you would like to be treated, particularly if you had an irreversible, terminal condition.
Write an Advance Statement or Advance Decision

What is the difference between an Advance Statement and an Advance Decision?

An "advance decision to refuse treatment" lets you explain the types of medical treatment(s) you would not want doctors to give you if a time comes when you lack capacity and cannot make or communicate your wishes. You have to express this whilst you still have the capacity to make these decisions.

An "Advance Statement" allows you to make general statements, describing your wishes and preferences about future care should you be unable to make or communicate a decision or express your preferences at the time. There is no restriction on what can be expressed in an Advance Statement, and it doesn't have to be directed at medical staff. Oftentimes, an Advance Statement is written for the benefit of family and loved ones. It can describe your preferences for palliative care, the music that you like to listen to, the clothes that you wish to wear, the types of visits you would like to receive and from whom.

An Advance Statement is not legally binding. You are just documenting these preferences for the benefit of your loved ones, who would hopefully respect your wishes.

At LegalWills.co.za, we cover the Advance Statement and Advance Decision within our MyLivingWill™ service. Although the Living Will is not a legally recognised term, it is well known, and for the sake of clarity and brevity, it makes sense for us to go by the term "Living Will".

Why would a Living Will be useful?

We regard the Living Will as a part of a complete "Estate plan". Your estate plan includes the Last Will and Testament, your Power of Attorney, your Funeral wishes, and your Executor Handbook.

Preparing any of these documents does not mean that you are about to die. You should prepare your estate planning documents, and then put them in a drawer. Just in case. From time to time, take them out, read them through, and see if they still reflect your wishes. You cannot wait until you "need" the documents before writing them. They must all be completed whilst you are fit, healthy and mentally competent. They come into effect after you have lost capacity, or in the case of your Will, after you have died.

Of course, you may be in a situation where you know that something is imminent. You may have been diagnosed in the early stages of an illness, or going in for critical surgery, or even going on a trip. In these situations, the timing of your estate planning documents becomes a little more pressing.

If you have strong feelings about your medical care, either from a religious or spiritual influence, or even from seeing somebody else go through a traumatic experience, then you should seriously consider preparing your Advance Statements.

Can I put this into my Last Will and Testament?

No. Your Last Will and Testament does absolutely nothing whilst you are alive, even if you are in a coma or unable to speak for yourself. Your Last Will and Testament only has power after you have passed away. The Executor named in your Last Will and Testament has absolutely no powers whilst you are alive.

Your Living Will, Advance Decision and Advance Statement are in effect whilst you are alive but unable to speak for yourself. They are immediately cancelled at the moment you pass away.

How can I create an Advance Statement or Advance Decision?

There is no official format for an Advance Statement or Advance Decision. You must be over 18 years of age, and you must be mentally competent.

There is no requirement to work with a lawyer or a doctor to prepare your Advance Statement or Decision.

If your Advance Decision includes a wish to refuse life sustaining treatment, then it must be in writing.

The best way to prepare your Living Will is to use the online Living Will tool at LegalWills.co.za. You should download and print the document, and then sign it in the presence of two witnesses.

What can I include in my Advance Statement? What am I not allowed to include?

Our MyLivingWill service guides you through the process of preparing your Advance Statement and Advance Decision. There are restrictions on what you can include in your Advance Decision.

You cannot:
  • refuse basic care that is essential to keep you comfortable, such as nursing care, pain relief, keeping you warm
  • refuse the offer of food or drink by mouth
  • ask for anything that is against the law such as euthanasia or help to take your own life
  • demand specific medical treatment; no one can insist on treatment that healthcare professionals consider clinically unnecessary, futile or inappropriate
  • refuse treatment for a mental disorder if you are to be detained under the Mental Health Act 1983

Is a Living Will legally binding? Can it be ignored?

An Advance Decision is legally binding and must be followed by a medical professional, even if they feel that your wishes are not in your best interests. If there is no Advance Decision, then the medical professionals will simply treat you in a manner that they feel is in your best interests.

How should I let people know that I have prepared a Living Will?

Much like the other estate planning documents, if you have prepared one, and nobody knows about it, you are no further ahead. It is very important that your loved ones know that you have and Advance Statement or Advance Decision. We provide some tools to help with this.

We offer a MyKeyholder™ service that grants access to different services for trusted Keyholders®. You can set up a trusted individual to access your Life Locker, Vault, Messages and even your Living Will itself. We also have Wallet Cards available with a unique Keyholder ID. This wallet card can alert the finder to the documents that you have prepared, and allow them to access these documents at the appropriate time.

 

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How It Works

When you create a Will or legal document at LegalWills, you can designate up to 20 different Keyholders®. Your chosen Keyholders® will be given the trust and power to unlock specific information within your account such as health care directives, funeral wishes, final messages, uploaded files, Power of Attorney, or Last Will and Testament.

You can also implement security mechanisms to prevent premature access to these documents. The entire process of creating your Will and other legal documents at LegalWills is seamless and iterative, meaning you can continue to make changes until you're happy with the final product.
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Frequently Asked Questions

There is absolutely no legal requirement to use the services of a lawyer to prepare your Will.

The law requires that the Will is written on a piece of paper and then signed by you in the presence of two witnesses. Once it is signed and witnessed, it becomes a legal Last Will and Testament.

If you need legal advice, you should secure the services of a lawyer, but most people do not need legal advice to prepare a Will. Especially if they are using a service like the one at LegalWills.co.za.
When you write your Will with a lawyer, you are paying for their training, so that if you needed custom clauses written for unique situations, they would probably be able to do this for you. However, most Wills do not require unique new clauses to be written, and the vast majority of Wills are a compilation of known legal "precedents".

Most lawyers use Will writing software to prepare Wills, and we use that exact same software, but give you direct access to it. You should really be asking why a lawyer charges R2,000 for about an hour's work.

If you have unusual circumstances, such as a child with special needs, then you may need legal advice. But for the vast majority, you would be paying premium rates for legal advice that you don't need.

There are no other payments required to prepare your legal Will. You can have a legal Will in your hands for R499 with nothing else to pay, ever.

What other options are there?
If you wish, you can have your Will reviewed by one of our lawyers for R999. Most people do not need this, and would not benefit from it, but if you have selected an option such as "None of the above. Let me describe in detail how to distribute my estate.", then you may want to consider this.

Your Will must first be printed, and then signed in the presence of two witnesses. If you do not have access to a printer, we can print it for you and mail it out. The cost for this is R99, but again, most people do not need this option.

We also offer other services like MyLifeLocker™ and a Living Will. They are not required, but they may be useful to you depending on your situation.

What about document storage?
We do not store physical documents, but we allow you to maintain an account with us if you want to update your document in the future.

The Will service costs R499. With this payment, you are able to prepare your Will. It also gives you one year of unlimited updates to the document. You are able to print the document as often as you wish during that first year. You can download it as a PDF or Word file, but to make your document a legal Will, it must first be printed, and then signed in the presence of two witnesses. The online version is there for your convenience only.

If you choose not to maintain an account with us after the first year, your initial payment is all you will ever pay. We do not keep credit card details on file and cannot automatically charge beyond this initial payment.

If you wish, you can choose to store your documents online for longer than a year, which will make it easier to make updates in the future to reflect any changes in your personal or financial situation (rather than returning to a lawyer each time). This is of course optional, but it does make the process of maintaining your document more convenient. R119 will give you one additional year of updates, or you can purchase multiple years: 5 years at R299, 10 years at R399, 25 years at R799 (R32 per year).

Every time you make an update to your Will, it must first be printed, and then signed in the presence of two witnesses again. If you choose not to maintain an account with us, you will always have your printed, signed document. If you don't need to make changes to that document, it will last you for the rest of your life, whether or not you have an account with us.

What happens if I don't maintain an account, and then in a few years I need to update it?
If your account has not been touched in years, and it is inactive, we reserve the right to remove the account. You will receive an email notification that your account might be removed. However, in practice, we have never actually removed any accounts in our over 24 years of operation.

So, in all likelihood, you will be able to simply login to your account and pay R119 to reactivate it. This will give you one year of unlimited updates from the date of payment. (You will not have to pay for your inactive years.)

Our answer is different depending on what you are comparing us to.

The service at LegalWills.co.za is significantly better than a blank form Will kit that you can buy on Amazon or WHSmiths. These blank kits do not check for errors, allow you to do things you are legally not allowed to do, and rarely cover backup scenarios. They are actually the most difficult way to prepare a well drafted Will.

We provide the same quality documents as an estate planning lawyer – often word-for-word identical, because we use the same software that they use. We've just adapted it to make it easier to understand, and given you direct access to it. Therefore, you can create a lawyer grade Will, but from the comfort of your own home at less than a tenth of the price.

When compared to other online services, we have honest, up-front pricing that is better than any equivalent service. We also believe that we have the highest quality service online today. In all the time that we have been in business, never once has one of our Wills had an issue going through the probate process. We also offer best-in-class phone and email support if you get stuck.

Some other highlights:

  • Help text every step of the way.   Every page of our service has additional help text to answer your questions. If you get stuck, send us an email and we can help.

  • Create your Will from anywhere at any time.   Our service works on any computer, phone or tablet. Which means you can create or update your Will in the middle of the night in Timbuktu if you need to.

  • Unlimited updates.   If you write your Will with a lawyer, it could be out of date by the time you get home. You don't face that issue with LegalWills.co.za. If your circumstances change, simply login to your account, update your document, and sign your new Will. There is no charge for updates as long as you maintain a membership.

  • Professional reviews by a lawyer.   Our service works for the vast majority of situations, but on occasion people have unusual circumstances and need the reassurance of a legal professional's eye. We offer this as an option.

  • Our other services.   We don't just do Will writing. We offer a complete portfolio of services that will help you to plan your estate. We have the LifeLocker® executor tool, that allows you to document all of your personal details and assets, and MyVault™ that lets you upload important files. Together with our Keyholder® mechanism, you can be assured that the right information gets into the right hands at the right time (and not before).

  • Privacy and security.   We do not store any information as plain text. We do not store Wills in our database. All of your information is encrypted on our servers. Nobody can access it except you and your designated Keyholders® at the appropriate time. Furthermore, we do not share, trade or sell any of your data with third parties whatsoever.

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