Most people make a will to say what should happen to their assets when they die. Far fewer record what should happen to them medically if they are still alive but can no longer speak for themselves, for example after a serious stroke, an accident or in the final stages of a terminal illness.
A living will, also called an advance directive, records your wishes about medical treatment in that situation. It can spare your family from having to guess what you would have wanted, and from disagreeing with each other or with doctors at a very difficult time.
South Africa has no dedicated legislation on living wills, and there is ongoing public debate about end-of-life choices, including a constitutional challenge launched in 2026 on medically assisted dying. This article explains where the law stands on living wills now, how to make one that is likely to be respected, and how it fits into your broader estate and incapacity planning.
What a living will is, and what it is not
A living will is a written statement, made while you are mentally competent, setting out the medical treatment you would or would not want if you become terminally ill or permanently unconscious and unable to make or communicate decisions. Typical instructions deal with:
- refusing life-sustaining treatment, such as mechanical ventilation, resuscitation or artificial feeding, where there is no reasonable prospect of recovery;
- receiving adequate pain relief and palliative care, even if it may shorten life; and
- organ donation and other personal wishes.
A living will is not a request for euthanasia or assisted suicide. Actively ending a patient’s life remains unlawful in South Africa. A living will deals with refusing or withdrawing treatment and allowing a natural death, which is a different legal question.
It is also separate from your ordinary will, which only takes effect on death and deals with your estate.
The legal status of living wills
No South African statute expressly regulates living wills. The South African Law Reform Commission recommended legislation on end-of-life decisions in the late 1990s, but it was never enacted. Even so, a living will has a sound legal basis:
- The Constitution protects the rights to dignity, bodily and psychological integrity, and the right to make decisions about one’s own body.
- The National Health Act 61 of 2003 requires a patient’s informed consent to health services. Section 7 allows consent to be given by a person the patient has mandated in writing to consent on their behalf. This written mandate is an important tool, and many advance directives are drafted to include one.
- The common law recognises a competent adult’s right to refuse medical treatment, even where refusal may lead to death. A 1992 judgment of the Durban High Court accepted that withdrawing artificial feeding from a patient in a persistent vegetative state with no prospect of recovery was lawful.
- Ethical guidelines of the Health Professions Council of South Africa encourage practitioners to respect patients’ previously expressed wishes about withholding and withdrawing treatment.
In practice, doctors and hospitals generally treat a clear, properly made living will as strong evidence of the patient’s wishes. Because there is no statute, it is not automatically binding in every situation, so careful drafting and communication matter.
The 2026 assisted dying challenge
In April 2026 DignitySA launched a court challenge to the common law prohibition on medically assisted dying. According to media reports, the Department of Justice and the National Director of Public Prosecutions have said they will not oppose it, while the Minister of Health and the Health Professions Council of South Africa intend to oppose it. The case is pending. Whatever the outcome, it concerns assisted dying, not the existing right to refuse treatment through a living will.
A gap many people overlook: incapacity and powers of attorney
A general power of attorney lapses when the person who granted it loses mental capacity. South African law does not currently recognise an “enduring” power of attorney. This means that if you become incapacitated, nobody automatically has authority to manage your finances, sign documents or run your business.
In that situation, your family may need to apply to the High Court for the appointment of a curator, or use the Mental Health Care Act 17 of 2002 administrator process where it applies. These processes take time and cost money. Planning ahead, for example through a properly structured trust, business continuity arrangements and clear instructions to your family, can reduce the disruption.
How to make a living will that works
- Be clear and specific. State the circumstances in which the directive applies and the treatments you do and do not want.
- Appoint a proxy. Include a written mandate under section 7 of the National Health Act appointing a trusted person, and an alternate, to make healthcare decisions on your behalf.
- Sign it properly. Sign and date it in the presence of two independent witnesses who will not benefit from your estate. There is no statutory formality, but this helps prove it is genuine.
- Talk to your doctor and family. Explain your wishes so that nobody is surprised.
- Make it accessible. Give copies to your proxy, family and doctor, and keep one with your important documents. A living will no one can find will not help.
- Review it regularly. Update it after a major diagnosis, a change in relationships or every few years, and re-sign it.
- Align your other documents. Your will, any trust and business arrangements should be consistent with your incapacity planning.
How O’Reilly Law can help
We draft living wills and healthcare mandates as part of a complete estate plan, alongside wills, testamentary trusts and family trusts. We advise on incapacity planning for individuals and business owners, assist families with curatorship applications, and, through O’Reilly Fiduciary, act as executors and administer deceased estates.
Contact us to put your living will and estate plan in place.
Related reading: Dying without a will: how intestate succession works · Choosing an executor, and what executors actually do
This article is general information and not legal or medical advice. Correct as at November 2026.