Living Will (New Zealand)

A Living Will in New Zealand records a person's wishes about future medical treatment for use if they later lose capacity to decide for themselves, with its legal effect grounded in Right 7 of the Code of Health and Disability Services Consumers' Rights 1996. It allows a competent consumer to refuse treatment, including life-sustaining treatment, in advance.

In New Zealand, the legal foundation for a Living Will rests primarily on the Code of Health and Disability Services Consumers' Rights 1996, issued under the Health and Disability Commissioner Act 1994. Right 5 of the Code guarantees every healthcare consumer the right to effective communication, and Right 7 guarantees the right to make an informed choice and give or withhold informed consent. Right 7(5) explicitly provides that every competent consumer has the right to refuse any medical treatment, including life-sustaining treatment. This right extends to refusals made in advance, through a Living Will, for situations where the consumer anticipates future incapacity.

The Protection of Personal and Property Rights Act 1988 (PPPR Act) provides additional relevant context. The PPPR Act allows the Family Court to appoint a Welfare Guardian to make personal and welfare decisions on behalf of a person who lacks decision-making capacity. A Welfare Guardian is legally required to act in the person's best interests and to give effect to their known wishes, making a Living Will an important document for Welfare Guardians to consult.

The End of Life Choice Act 2019, which came into force on 7 November 2021 following a public referendum, provides for assisted dying for eligible adults in New Zealand. While a Living Will cannot make an advance request for assisted dying (such requests must be made contemporaneously by a competent person), a Living Will can address palliative care preferences and record the maker's position on the Act.

Organ donation in New Zealand is governed by the Human Tissue Act 2008, which provides the legal framework for the donation and transplantation of human tissue. Wishes about organ donation can be registered on the Organ Donation Register at www.donor.co.nz and should also be recorded in a Living Will.

A Living Will is an essential planning document for any adult who has views about their medical care and who values having those views respected in circumstances where they cannot speak for themselves.

A Living Will is appropriate for any adult who wishes to record their healthcare preferences for future situations where they may lack decision-making capacity. While it is particularly important for older adults and those with serious or progressive health conditions, it is relevant for people of all ages.

After a serious illness diagnosis. Being diagnosed with a serious illness — such as cancer, heart disease, motor neurone disease, or dementia — is a common prompt to prepare a Living Will. At this stage, a person can clearly articulate their treatment preferences based on a realistic understanding of their prognosis and the options available.

As part of estate planning. A Living Will naturally sits alongside a will, enduring power of attorney, and other estate planning documents. Completing these documents together confirms that a person's wishes are thoroughly recorded for both financial and personal welfare matters.

Before major surgery or medical procedures. People facing significant medical procedures sometimes use this as an opportunity to document their end-of-life preferences and confirm their healthcare team is aware of their wishes.

For people with progressive neurological conditions. Conditions such as dementia, Parkinson's disease, and motor neurone disease progressively affect decision-making capacity. A Living Will made while capacity is intact gives the person the ability to control their future care to the greatest extent possible.

For young adults as a precautionary measure. Anyone can lose decision-making capacity through an accident or sudden illness. A Living Will confirms that a young adult's preferences are known and respected, even in unexpected circumstances.

Following the loss of a loved one. Watching a family member undergo medical treatment that they might not have wanted — or experiencing uncertainty about what a relative would have wanted — motivates many people to prepare their own Living Will.

In all cases, discussing your Living Will with your GP, healthcare proxy, and family confirms that it will be accessible and acted upon when needed.

A well-drafted New Zealand Living Will should address several key elements to be effective and clearly communicate the maker's wishes to healthcare providers.

Clear identification of the maker. The Living Will must identify the maker by their full legal name, date of birth, address, and, where possible, their National Health Index (NHI) number. This enables healthcare providers to correctly match the document to the patient's records.

Statement of capacity. The document should include a clear statement that it is made while the maker has full decision-making capacity. This is important evidence that the document records genuinely informed wishes.

Healthcare proxy or Welfare Guardian. The Living Will should identify a trusted person to act as the maker's healthcare proxy — the person who will advocate for the maker's wishes and make healthcare decisions on their behalf if needed. While a private nomination in a Living Will is not the same as a formal Welfare Guardian appointment under the Protection of Personal and Property Rights Act 1988, it provides important guidance. The proxy's name, relationship, and contact details should be clearly stated. An alternate proxy should also be named.

Life-sustaining treatment wishes. The most critical element of a Living Will is the maker's clear wishes about life-sustaining treatment. This should address CPR, mechanical ventilation, artificial nutrition and hydration, and any other interventions the maker has views about. The circumstances in which these wishes apply — particularly end-of-life situations with no reasonable prospect of recovery — should be specified.

Palliative care and pain management. The maker's preferences for palliative care, pain management, and quality of life at end of life should be clearly articulated. Many people wish to prioritise comfort and dignity over life-prolonging treatment at the end of life.

End of Life Choice Act 2019. The maker's position on assisted dying, and whether they wish to receive information about the Act if they become eligible, should be addressed.

Organ and tissue donation. Wishes about organ and tissue donation after death should be recorded, consistent with the Human Tissue Act 2008. Registration on the Organ Donation Register at www.donor.co.nz is also encouraged.

Personal care preferences. Cultural, spiritual, religious, and personal preferences for care and environment at end of life — including preferred place of death and the presence of family — provide important human context that helps healthcare providers and family honour the maker's wishes.

Date, signature, and witness. A Living Will should be signed and dated. Witnessing by an independent person (preferably a healthcare professional, lawyer, or Justice of the Peace) adds credibility and helps demonstrate that the document was made voluntarily while the maker had capacity. The forms-legal.com Living Will (New Zealand) provides a ready-to-use template that meets New Zealand legal requirements.