WHAT IS A WILL, LIVING WILL AND A POWER OF ATTORNEY

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Last Will and Testament

A Last Will and Testament is a special document, executed in accordance with the applicable formalities, that dictates how your assets will be dealt with after you have died and after all your debts have been settled. A Last Will and Testament can also be used to create conditions attaching to the relevant inheritance, such as giving your spouse the right to reside in your home for the rest of her life and leaving the house to your children. Additionally, a Last Will and Testament must be executed in accordance with certain formalities to ensure that it is a valid Last Will and Testament.

The benefits of having a Last Will and Testament include:

  • Giving you the power to “override” the default inheritance system that the Government has put in place.
  • Giving you the power to structure your late estate so that you pay less in estate duty (death taxes).
  • Allowing you to leave a charitable benefit to an organisation that you support.
  • Giving you the power to attach reasonable conditions to inheritances.
  • Reducing the possibility of disputes in your family as to who gets what inheritance.

Living Will

A Living Will is a document that contains an advanced directive to medical professionals and family as to whether or not you want to be kept alive through artificial means, such as feeding tubes, life support, etc. This document cannot and does not give a person the power to make end-of-life decisions, as South African law does not recognise this.

The benefits of having a Living Will include:

  • Giving you the power to decide, in advance, how you are medically treated when you are not in a position to make such decisions.
  • Freeing your family from the burden of having to make end-of-life decisions.
  • Controlling expensive medical treatment.

Power of Attorney

A Power of Attorney is a document that gives another person, the agent, the power to act on your behalf in certain matters or in all matters. Very importantly: the agent can bind the person giving the Power of Attorney; a Power of Attorney does not allow the agent to do certain things, such as make a Last Will and Testament or make end-of-life decisions when the person giving the Power of Attorney cannot make decisions for him or herself; a Power of Attorney does not “survive death”, in other words, once the person who gave the Power of Attorney dies, the Power of Attorney ceases to have effect and cannot be used anymore.

Benefits of giving someone Power of Attorney include:

  • Allowing certain service providers to do things and sign documents instead of you having to do them.
  • Allowing the agent to act on your behalf when you cannot do so for logistical reasons (e.g., you are outside of South Africa).

Disclaimer: The above should not be accepted as legal advice, and you are encouraged to seek legal advice.

Prepared by Bruce Barkhuizen, Attorney and Notary.