What is a living will and is it legal in South Africa?

A living will is a written statement, made while you are able to decide for yourself, refusing life-sustaining treatment in a future situation where you can no longer speak for yourself. It typically says that if you are unconscious, terminally ill or permanently unable to communicate, and there is no reasonable prospect of recovery, you do not want to be kept alive by machines, tube feeding or repeated resuscitation. It usually asks for pain relief and comfort care to continue.

It is not a will. That is the most common confusion and it matters. A will made under the Wills Act 7 of 1953 says who gets your property after you die, is lodged with the Master of the High Court when your estate is reported, and only takes effect on death. A living will says how you want to be treated while you are still alive, is not lodged with the Master, and stops having any effect the moment you die. You need both documents, and they do different jobs. Read how to write a valid will for the other one.

Is it legal in South Africa?

There is no South African statute that expressly governs living wills. Nothing says in so many words that a living will is binding, and nothing says it is not. That is why the answer usually given is careful rather than confident.

What a living will rests on instead is two well-established things. The first is the common law right of an adult of sound mind to refuse medical treatment, even treatment that would save their life. You do not have to accept an operation, a transfusion or a ventilator. That right is a long way from controversial.

The second is informed consent under the National Health Act 61 of 2003, which requires that a patient give informed consent to health services and be given information about the treatment and its risks. Consent is a live idea. A living will is your attempt to record, in advance, the consent you would refuse if you could still speak.

The practical result is this. A living will is not a document a doctor is compelled by statute to follow. It is strong evidence of what you would have decided, and in practice most doctors and hospitals in South Africa take a clear, properly made living will seriously, particularly where the family confirms it and there is no reason to think you changed your mind. Where the document is vague, old, or unknown to the family, it carries much less weight.

What a living will cannot do

A living will refuses treatment. It cannot ask anyone to bring about your death. No doctor, nurse or family member may lawfully act on a request to end your life, and including such a request in the document weakens everything else in it.

It also does not appoint anyone to manage your money. If you become unable to handle your own financial affairs, a living will does nothing about that. That is a separate problem and one worth raising with an attorney separately.

And it only operates while you are alive. Organ donation, funeral wishes and what happens to your body are separate matters. Many people put their organ donation wishes in the same document for convenience, and tell their family, which is sensible, but that part of it works because the family knows, not because the living will compels anything.

How it works step by step

1. Decide what you actually want. Think about specific situations rather than slogans. Ventilation. Tube feeding. Resuscitation after the heart stops. Antibiotics for an infection when you are already dying. Dialysis.
2. Write it down clearly, in your own words if you like, or on a standard form. Say plainly that you are refusing the listed treatments in the described circumstances, and that you want pain relief and comfort care to continue.
3. Date it and sign it. A recent, dated document is far more persuasive than one from twenty years ago.
4. Have witnesses sign. There is no statutory requirement, but two independent adult witnesses who are not going to inherit from you make the document harder to argue with.
5. Give copies to the people who will be in the room. Your spouse or partner, your adult children, and anyone else likely to be asked to decide.
6. Give a copy to your doctor and ask that it be put on your medical file. This is the step people skip and the one that most often makes the difference.
7. Carry a note in your wallet saying that you have a living will and who holds it.
8. Review it every few years and re-sign it. A document you confirmed recently is much harder to dismiss.

A worked example

The names below are illustrative only.

Marius, aged 71, signs a living will after his father spends five months on a ventilator. His document says that if he is unconscious with no reasonable prospect of recovery he does not want mechanical ventilation, tube feeding or resuscitation, and that he does want pain relief. Two neighbours witness it.

He puts the original in a folder at home with his identity document. He gives a copy to his wife Anna, a copy to each of his two children, and a copy to his GP, who scans it onto his file. He puts a card in his wallet saying a living will exists and giving Anna's number.

Four years later Marius has a severe stroke and is admitted unconscious. Anna gives the hospital her copy. The treating doctor pulls the GP's copy from the referral file. The document is recent, specific, witnessed, and both children confirm that this was their father's clearly stated view. The medical team takes it into account in deciding on the treatment plan.

Compare a second version of the same story. Marius signs the same document but puts it in a bank safety deposit box and tells nobody. He has the same stroke. The family does not know the document exists, cannot get into the box quickly, and the medical team has nothing to work with. The living will has no effect at all. It is a good document that failed for a filing reason.

What to do this week

1. Write down the situations you fear and the treatments you would refuse in each. Do this before you look at any form.
2. Talk to your family. The conversation matters more than the paper. People follow wishes they have heard you say.
3. Sign and date a written living will, with two independent witnesses.
4. Give a copy to your doctor and ask for it to go on your file. Confirm by email so you have proof.
5. Give copies to your spouse or partner and your adult children. Tell them where the original is.
6. Put a note in your wallet saying the document exists.
7. Check your ordinary will separately. A living will is not a substitute, and if you do not have a will your estate falls under the Intestate Succession Act 81 of 1987. See the simple will template.

Documents to gather

• your identity document
• the names, identity numbers and contact details of two independent witnesses
• your doctor's name and practice details
• your medical aid details and membership number
• a list of the treatments you want to refuse, written out before you fill in any form
• the contact details of the family member you want approached first
• your existing will, so you can check the two documents do not contradict each other
• your organ donor wishes, if you want them recorded at the same time

Realistic timeline

Making a living will is quick. Writing, signing and witnessing it takes an afternoon. Getting it onto your doctor's file takes a phone call and an email. There is no waiting period, no registration and no fee to the Master, because the Master has nothing to do with it.

The part that takes time is the conversation with your family. Plan for more than one discussion. A family that has talked about it is far less likely to argue at the bedside.

Common mistakes and what they cost

• Keeping it secret. A living will nobody knows about does nothing. This is the failure that undoes most of them.
• Locking it in a safe or a safety deposit box. By the time anyone gets it out, the decision has been made.
• Writing it in vague language. "No extraordinary measures" means different things to different doctors. Name the treatments.
• Confusing it with your will. Putting your property wishes in a living will, or your treatment wishes in your will, means neither is read at the right moment. Your will is only read after death.
• Asking for something unlawful. A request that anyone bring about your death cannot be acted on and casts doubt on the rest of the document.
• Never updating it. An unsigned photocopy from decades ago, with no confirmation since, is easy to dismiss.
• Not telling the family who speaks first. When several relatives disagree at the bedside, the document is only as useful as the person presenting it.

If you cannot afford an attorney

You do not need an attorney to make a living will. There is no statutory form, no registration and no filing fee. You can write it yourself, sign it, have two independent adults witness it and hand out copies. Several South African organisations publish free living will forms, and your GP or clinic can usually point you to one.

Because the Master is not involved, none of the usual estate costs apply here. If you are also making an ordinary will, note that the Master's office deals with the public directly on estates, and small estates are administered under section 18(3) letters of authority.

Legal Aid South Africa on 0800 110 110 assists people who pass its means test. University law clinics in most large centres will look over a living will and a simple will together at no charge. If you do want an attorney to draft both, see what a wills and estates attorney costs.

Frequently asked questions

The questions people ask about living wills are almost always about force. Must the doctor obey it. Can the family override it. Does it need to be witnessed. The honest answers are that no statute compels a doctor to follow it, that it is nevertheless strong evidence of your wishes and is usually respected where it is clear and known, that a family cannot lawfully consent to treatment you have refused but can create enough doubt to change what happens, and that witnesses are not required but make the document much harder to challenge. The answers below cover the rest.