Imaginea hospital room where critical choices must be made, but the patient is unable to speak for themselves. Who decides what happens next? This is where a Living Will—a thoughtfully written advanced medical directive (AMD) —steps in for Indians today. A Living Will lets an individual clearly put down their wishes about life-sustaining treatments for times when they are incapacitated or unconscious, whether due to a sudden accident, a stroke, or advanced illness.

Legally recognised by the Supreme Court of India since 2018, in Common Cause (A regd. Society) v. Union of India, this document is a way for anyone, regardless of age, to ensure their choices on medical care are known and respected, even if they can’t communicate them. In a country where family decisions at the bedside can be fraught and emotional, a Living Will offers clarity, dignity, and peace of mind for both patients and those who care for them, and allows for passive euthanasia. The Apex Court of India recognised living wills and the right to die with dignity as a fundamental right under Article 21 of the Constitution.

How to Create a Living Will?

Draft the Document:

Prepare an Advance Medical Directive outlining specific medical conditions and treatments you do or do not want.

Execute with Witnesses:

The living will must be executed by a person of sound mind, voluntarily, and without coercion.

Get Attestation:

The document must be attested by two witnesses and a notary or a gazetted officer.

Secure Custody:

The certified document must be forwarded to the taluka Mamlatdar, who will then send it to a nodal officer appointed by the District Collector for safe custody.

Key Considerations:

•Individual Autonomy:

Living wills uphold an individual’s right to make decisions about their own medical care.

•Dignity in Death:

They provide a way for people to express their wishes and ensure dignity even when they are incapacitated.

•Evolving Legal Landscape:

While the framework is established, the implementation of living wills is an ongoing process, and the legal and procedural mechanisms continue to evolve.

The Laws in India:

In India, the advent of Living Wills has brought forth a thought-provoking debate. It questions the delicate balance between the fundamental right to life under the Constitution, and the right to peacefully embrace a dignified death. According to a groundbreaking Supreme Court judgement in 2018, individuals are now able to express their end-of-life choices through a Living Will. But this legal development has also raised critical questions about autonomy, ethics, and societal perspectives on an individual’s right to die. Also, since the concept of a Living Will is a narrow path to tread, the Supreme Court revised its earlier judgement, and relaxed some of the earlier guidelines for implementing one in January, 2023.

Basic Requirements For Making A Living Will In India:

•The Executor (person making the Living Will) must be at least 18 years old and mentally sound.

•They must name a person, preferably from their family or close relatives as a Guardian to help execute the Will.

•The document must then be hand attested by the Executor, two independent Witnesses, and countersigned by a notary or gazetted officer. The notary or gazetted officer must verify that the document has been made free of coercion to their satisfaction.

•Copies of the Living Will must be shared with the Guardian, family physician (if any), and designated local government officer or the jurisdictional Municipal Corporation, for official records.

•The Executor can also incorporate their Living Will as a part of their electronic health records, if any.

Earlier, the process of executing an AMD was cumbersome, with the jurisdictional Judicial Magistrate of First Class (JMFC) playing an active role in it. The document had to be countersigned by the JMFC and preserved in digital format, forwarded to the Registry of district Collector, and copies had to be given to family members and the family physician, if any. However, this process has been simplified after the law was amended.

Living Will vs Will of Property:

It is common for people to confuse a Living Will with a regular Will, but there is a major difference between the two. A regular Will in India outlines the distribution of assets after death, while a Living Will, as we read above, expresses an individual’s wishes regarding medical treatment and end-of-life decisions, if they become incapacitated. A Living Will comes into effect during a person’s lifetime, whereas a regular Will takes effect after their demise. Both, however, are revocable at any time by the person writing it.

The Future of Living Wills:

The significance of a Living Will cannot be overstated, especially in cases where the Executor is terminally ill and there is no hope of recovery. It serves as a guiding light for both medical professionals and family members, enabling them to make informed decisions on behalf of the person suffering.

The evolution of the Living Will process in India since the Supreme Court’s landmark judgement in 2018 is evident, with increased awareness and simplified procedures. However, further efforts are required to educate the public about the necessity of a Living Will and streamline the process to make it a more accessible tool for all.

In comparison, the United States and the United Kingdom have made notable progress in facilitating the creation of Living Wills. In the US, individuals can easily obtain Living Will forms from various sources and customize them to their preferences. Witness signatures or notarisation are usually required (depending on the varying State laws) to validate the document. Similarly, the UK provides templates and resources through organisations like the NHS (National Health Service), enabling individuals to draft their own “Advanced Decision” document. These initiatives have contributed to making the process simpler and more user-friendly.

India can take inspiration from these countries to further streamline our own Living Will process. Organisations can play a pivotal role in creating drafts and providing templates that are easily accessible to the public. By simplifying the legal requirements and enhancing public awareness, more individuals can be encouraged to create their Living Wills, ensuring that their wishes are respected during medical emergencies. To conclude, a Living Will empowers individuals to retain control over their healthcare decisions, even when they are unable to communicate them directly. It offers peace of mind, not only to the Executor, but also to their loved ones, who are spared the burden of making difficult choices without clear guidance. By embracing the importance of a Living Will and working towards its widespread adoption, societies can ensure that each person’s autonomy and dignity are upheld during times of vulnerability.

(The author is the Principal, Vinayaka Law College, Siddipet, Telangana, and is an LLD Research Scholar in DSNLU, Visakhapatnam.)