By Elize Louw – Head of Estate Administration
Updated 4 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 Living Will gives a person an opportunity to communicate their healthcare preferences in advance, before they may become unable to make or communicate those decisions themselves.
It can help:
- Record preferences regarding medical treatment.
- Communicate 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.
Having clear instructions in place can provide valuable guidance during circumstances that may otherwise be extremely difficult for family members.
Living Wills and Medical Treatment Decisions
The South African Medical Association advises that healthcare practitioners act in the patient’s best interests while respecting the patient’s right to refuse treatment.
For this reason, a Living Will should be carefully drafted and, preferably, prepared with appropriate medical input. This can help ensure that the instructions are informed, clear and practical.
However, a Living Will cannot necessarily anticipate every possible medical situation.
Where ambiguity exists, healthcare practitioners may need to exercise professional judgment. They are nevertheless expected to give due consideration to the patient’s stated wishes.
Advanced Healthcare Directives and Medical Proxies in South Africa
A related instrument is an advanced healthcare directive, which allows individuals to appoint a medical proxy in line with Section 7 of the National Health Act to make decisions on their behalf.
Appointing a medical proxy can help ensure greater consistency with the patient’s wishes and may reduce the likelihood of disputes among family members.
It is advisable to appoint both a primary medical proxy and an alternate proxy, rather than appointing joint proxies.
How to Draft a Living Will
Drafting a Living Will can be complex, particularly when attempting to anticipate possible future medical conditions.
The process may be more straightforward where an individual has a specific, life-limiting diagnosis. In these circumstances, medical professionals can assist in defining appropriate care options and ensuring that the individual’s wishes are clearly expressed.
A Living Will should clearly communicate the individual’s preferences regarding medical treatment and should be prepared while the individual is of sound mind.
How Often Should a Living Will Be Reviewed?
Personal circumstances, medical conditions and healthcare preferences can change over time.
Living Wills should ideally be reviewed every three years or following significant life changes to ensure that they remain accurate and relevant.
Significant changes in circumstances may make it appropriate to reconsider whether the instructions still accurately reflect the individual’s wishes.
Legal Considerations for Living Wills in South Africa
One of the important legal considerations surrounding Living Wills in South Africa is the distinction between a person’s current refusal of medical treatment and an advance directive expressing wishes about future treatment.
A patient’s contemporaneous refusal of medical treatment is legally valid. However, advanced directives represent prospective decisions and are not formally recognised as legally enforceable.
Although a draft “End of Life Decisions Act” was developed to address this legal gap, it has not been enacted.
As a result, advanced directives are not legally binding, and courts cannot be compelled to enforce them.
Nevertheless, they are generally regarded as ethically acceptable, and healthcare practitioners may follow them, particularly in circumstances 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 are unlawful in South Africa.
However, the refusal or withdrawal of medical treatment is permissible. This allows the natural progression of an illness rather than intentionally causing death.
It is therefore important to understand the distinction between refusing or withdrawing medical treatment and requesting euthanasia or assisted suicide when preparing healthcare wishes.
Can a Living Will Include Organ Donation Instructions?
In addition to providing guidance regarding medical care, Living Wills may include instructions concerning organ donation.
This provides an opportunity for individuals to communicate their wishes regarding organ donation as part of their broader healthcare planning.
Can a Living Will Help Reduce Medical Expenses?
A Living Will can also help limit unnecessary medical expenses in certain circumstances.
Where an individual’s wishes regarding life-sustaining treatment are clearly expressed, this may help avoid unnecessary medical interventions and potentially help preserve the value of the individual’s 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 before you may be faced with a situation where you cannot communicate them yourself.
It can provide guidance to your loved ones and healthcare practitioners and may help reduce uncertainty during difficult circumstances.
Although a Living Will cannot address every possible medical scenario, having clear and carefully considered instructions can help ensure that your preferences are known.
Final Thoughts on Living Wills in South Africa
A Living Will in South Africa provides an opportunity for individuals to communicate their healthcare preferences in advance, particularly in circumstances where they may no longer be able to communicate or provide informed consent.
Although South African law does not currently provide formal legal recognition or enforceability for advance directives, a carefully drafted Living Will can communicate an individual’s preferences and provide guidance to healthcare professionals and loved ones.
Because medical circumstances can be complex, it is advisable to consider obtaining appropriate legal and medical guidance when preparing a Living Will.
Regularly reviewing the document can also help ensure that it continues to reflect your 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.
