By Elize Louw – Head of Estate Administration
Updated 7 September 2026
Planning for future healthcare decisions is an important part of responsible personal and estate planning. A Living Will allows individuals to record their medical treatment preferences in advance, helping to ensure that their wishes are considered if they become unable to communicate.
A Living Will can also reduce the decision-making burden placed on family members during difficult medical circumstances.
Any person aged 18 or older and of sound mind may create a Living Will. It remains relevant even if the individual later loses mental capacity, as it provides guidance regarding whom to appoint as curator in an application for curatorship to the court.
What Is a Living Will?
A Living Will, also known as an advance directive, sets out a person’s preferences regarding medical treatment when they are no longer able to express informed consent.
A Living Will primarily allows individuals to state their wishes regarding the refusal of life-sustaining treatment in circumstances where recovery is unlikely.
It is important to understand that a Living Will is different from a Last Will and Testament.
- A Living Will deals with healthcare decisions during a person’s lifetime.
- A Last Will and Testament deals with the distribution of assets after a person’s death.
Is a Living Will Legally Recognised in South Africa?
In South Africa, Living Wills are not expressly regulated by legislation. This creates some uncertainty regarding their legal enforceability.
Nevertheless, Living Wills can provide important guidance regarding an individual’s wishes and may assist healthcare practitioners and family members when difficult medical decisions need to be made.
Why Is a Living Will Important?
A LA Living Will allows a person to communicate their healthcare preferences in advance. This can help if they later become unable to make or communicate those decisions themselves.
It can help to:
- Record preferences regarding medical treatment.
- Communicate healthcare wishes if the individual loses the ability to provide informed consent.
- Reduce the decision-making burden on family members.
- Provide guidance to healthcare practitioners.
- Reduce the potential for disputes among family members.
- Include instructions regarding organ donation.
- Help limit unnecessary medical expenses in certain circumstances.
Clear instructions can provide valuable guidance during circumstances that may otherwise prove extremely difficult for family members.
Living Wills and Medical Treatment Decisions
The South African Medical Association advises healthcare practitioners to act in the patient’s best interests while respecting the patient’s right to refuse treatment.
For this reason, individuals should carefully draft their Living Will and, preferably, seek appropriate medical input. This can help ensure that the instructions remain informed, clear and practical.
However, a Living Will cannot anticipate every possible medical situation.
Where ambiguity exists, healthcare practitioners may need to exercise professional judgment. They should nevertheless give due consideration to the patient’s stated wishes.
Advanced Healthcare Directives and Medical Proxies in South Africa
An advanced healthcare directive allows individuals to appoint a medical proxy in line with Section 7 of the National Health Act. The medical proxy can then make healthcare decisions on their behalf.
Appointing a medical proxy can help ensure that healthcare decisions remain consistent with the patient’s wishes. It may also reduce the likelihood of disputes among family members.
Individuals should appoint both a primary medical proxy and an alternate proxy, rather than joint proxies.
How to Draft a Living Will
Drafting a Living Will can be complex, particularly when anticipating possible future medical conditions.
A specific, life-limiting diagnosis can make the process more straightforward. In these circumstances, medical professionals can help define appropriate care options and ensure that the individual clearly expresses their wishes.
The individual should clearly state their preferences regarding medical treatment in the Living Will. They should prepare the document while they are of sound mind.
How Often Should a Living Will Be Reviewed?
Personal circumstances, medical conditions and healthcare preferences can change over time.
Individuals should ideally review their Living Will every three years or after significant life changes to ensure that it remains accurate and relevant.
Significant changes in circumstances may require individuals to reconsider whether their Living Will still reflects their wishes.
Legal Considerations for Living Wills in South Africa
One important legal consideration is the distinction between current and future treatment decisions. A patient legally has the right to refuse medical treatment when the decision arises. An advance directive records a decision about future treatment. However, it does not currently have formal legal enforceability. A draft “End of Life Decisions Act” sought to address this legal gap. However, the legislation has not been enacted.
As a result, an advance directive does not legally bind healthcare practitioners. Courts also cannot be compelled to enforce its provisions. Despite this, healthcare professionals generally regard advance directives as ethically acceptable. They may follow the patient’s wishes in appropriate circumstances, including situations such as a permanent vegetative state.
Living Wills, Euthanasia and Assisted Suicide
A Living Will may not include provisions for euthanasia or assisted suicide, as both remain unlawful in South Africa. However, South African law permits the refusal or withdrawal of medical treatment. This allows an illness to follow its natural progression without intentionally causing death.
When preparing your healthcare wishes, it is important to understand this distinction. Refusing or withdrawing treatment differs from requesting euthanasia or assisted suicide.
Can a Living Will Include Organ Donation Instructions?
In addition to guiding medical care, a Living Will may include organ donation instructions.This allows individuals to clearly communicate their wishes about organ donation as part of their healthcare planning.
Can a Living Will Help Reduce Medical Expenses?
A Living Will can also help limit unnecessary medical expenses in certain circumstances. Clearly expressing your wishes about life-sustaining treatment may help avoid unnecessary medical interventions.
This may also help preserve the value of your estate.
Living Will vs Last Will and Testament
It is important not to confuse a Living Will with a Last Will and Testament. Although both form part of responsible personal planning, they serve completely different purposes.
| Living Will | Last Will and Testament |
|---|---|
| Deals with healthcare decisions | Deals with the distribution of assets |
| Applies during a person’s lifetime | Takes effect after death |
| Records medical treatment preferences | Records wishes regarding an estate |
| May guide healthcare practitioners | Guides the administration of the deceased estate |
Having a Last Will and Testament does not replace the need to consider healthcare wishes separately.
Why Should You Have a Living Will?
A Living Will allows you to communicate your healthcare wishes in advance. This can help if you later become unable to communicate or make informed decisions. It can guide your loved ones and healthcare practitioners during difficult circumstances. It may also help reduce uncertainty about your wishes.
A Living Will cannot cover every possible medical situation. However, clear and carefully considered instructions can help ensure that others understand your preferences.
Final Thoughts on Living Wills in South Africa
A Living Will in South Africa allows individuals to communicate their healthcare preferences in advance. This becomes especially important if they can no longer communicate or provide informed consent.
South African law does not currently recognise advance directives as formally legally enforceable. However, a carefully drafted Living Will can clearly communicate an individual’s wishes. It can also guide healthcare professionals and loved ones.
Medical circumstances can become complex. For this reason, individuals should consider obtaining appropriate legal and medical guidance when preparing a Living Will.
Regularly reviewing the document also helps ensure that it continues to reflect their current wishes.
Disclaimer
The information contained in this article is provided for general informational and educational purposes only and does not constitute legal, medical, financial or professional advice. South African laws and legal interpretations may change, and individual circumstances may differ. The information should not be relied upon as a substitute for obtaining advice from a suitably qualified legal or medical professional.
Affluence Capital does not accept responsibility for any loss or damage arising from reliance on the information contained in this article. Individuals considering preparing or updating a Living Will are encouraged to obtain appropriate professional advice based on their specific circumstances.
