‘Drafting a living will safeguards your right to live and die with dignity’

It is not your usual will and is completely different from euthanasia. It is not just any legal document. It is legally recognisable in the eyes of Indian law. A living will is a friend to those who cannot communicate or are no longer of sound mind to make medical decisions for themselves. A living will is probably one of the best decisions you can make for yourself and your family members.

Given the fact that illnesses of all kinds, from cancers to lifestyle diseases, are on the rise, it has become extremely crucial for every adult to secure themselves medically for times when they become incapacitated. A living will enables you to do just that.

With World Health Day 2024 around the corner, Mid-day.com chose to speak to experts who volunteered to educate our readers about living will. While health experts refused to comment on the subject, three legal experts shared relevant insights on what a living will is, why one should draft the document, its advantages, and limitations, as well as the procedure to get a living will drafted.

What is a living will?
As explained by Bhaavya Roy, managing partner and founder, Kranti Law Offices, a ‘living will' also known as an Advanced Medical Directive is essentially a legal document that allows an individual to specify their wishes and instructions about medical treatment and end-of-life care in the scenario that they become terminally ill or incapacitated and are unable to communicate.

The term end-of-life care refers to medical care and support offered to patients and their families during the time leading up to death. The motive is to help patients live life as comfortably as possible by effectively managing physical symptoms and providing emotional, spiritual, and social support.

Adding to Roy's explanation, Subhadip Choudhuri, advocate, Calcutta High Court, specialising in civil laws, real estate laws and estate planning, says, "A living will is prepared by a person while they are of sound mind. In the will, one may also choose to pre-determine whether they would prefer to continue to exist on life support or recommend its withdrawal in case such an event arises."

Adding to this, Shreya Sharma, lawyer, founder, Rest The Case highlights a key piece of information. She says, "A living will is completely different from a will. Unlike a regular will or testament which deals with the distribution of assets after death, a living specifically addresses healthcare decisions while the individual is still alive."

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How is it different from euthanasia?
One must not confuse preparing a living will with euthanasia. Choudhuri elucidates, "Euthanasia is the act of ending the life of a terminally ill patient by his physician to save the patient from unbearable suffering which cannot be otherwise alleviated."

Euthanasia is of two types - active euthanasia and passive euthanasia. Active euthanasia may be administered at the request of the patient (voluntary euthanasia), without the patient's consent and at the discretion of his physician (involuntary euthanasia), and in instances where the patient is not in a state to provide consent (non-voluntary euthanasia). Passive euthanasia or the act of withdrawing the life support of a patient, who would otherwise not be alive, has been generally accepted worldwide.

Countries like the Netherlands, Belgium, Luxembourg, Colombia, Canada, Australia and a few others have accepted the administration of voluntary euthanasia only if certain conditions are met and the prescribed guidelines have been followed.

Involuntary euthanasia is prohibited and illegal in most countries. In 2018, the Supreme Court of India in its judgment in Common Cause (A Registered Society) v. Union of India and Another has allowed passive euthanasia of terminally ill patients provided the prescribed safeguards and guidelines have been strictly followed.

Choudhuri opines, "It may not be proper to put living will and euthanasia in the same basket. Euthanasia is a procedure while a living will is a document that contains the pre-determined consent of a person to undergo the procedure of euthanasia in case he is not able to specify his choice while being mortally ill."

Is it legal in India?
Roy says drafting a living will is legal in India. "Post the 2018 judgement of the Apex Court in the matter of Common Cause vs Union of India, patient autonomy with regards to end-of-life medical care was taken into consideration and passive euthanasia was legalised in India. The Supreme Court laid out an elaborate procedure for living wills and their enforceability. This was primarily taken into consideration given the Right to Life under Article 21 of the Constitution."

The right to life under Article 21 of the Constitution of India promises dignity in the process of dying. Depriving a person of their dignity during the end of their life is equivalent to depriving them of a meaningful existence.

Thus, the Supreme Court of India recognised the right to make advance directives for medical treatment, including the decision to refuse life-sustaining treatment.

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Should one draft a living will?
"Living wills are incredibly helpful," says Sharma. "Any adult who wants to have a say in their medical care should consider drafting a living will, particularly those with specific preferences or concerns about medical treatment."

Further, she states, "A living will also allows one to express their preference regarding the donation of organs and tissues after their passing, potentially saving or improving the lives of others."

Roy adds, "However morbid the conversation around living wills may be for family and friends, a living will ensure that the dignity of the executor remains prime in medical scenarios leading to the demise of the individual - dare I further add that the psychological and financial aspect, on the concerned caregivers wherein the dilemma of the said decision may impedingly loom on them."

Sharing his viewpoint, Choudhuri states, "A living will effectively safeguard a person's right to live with dignity and his right to die with dignity. A person can specifically state which medical procedures they would be willing to undergo and which they would not, in case they suffer from any ailments in the future that would not enable them to convey their decision then."

He goes on to say, "A living will remove any doubt that may arise in the minds of the doctors at the time of treatment of the person. One can also appoint a person who would have the right to make decisions on his behalf regarding the medical treatment and care to be provided to him. A pre-recorded consent also relieves a person's family members from making the painful decision to withdraw life support and let the person die or to allow him to live and suffer in excruciating pain. Further, the doctors would also feel assured that by withdrawing the life support they would not be acting unlawfully, as they had the consent of the patient."

Thus, all three legal experts think that any adult in a healthy and sound state of mind who is capable of understanding the purpose and consequences of drafting his living must decide to draft such a document.

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What is the procedure for drafting the will?
Only an adult of the age of 18 years or above can prepare a living will.

The Supreme Court in the Common Causes Judgement laid down a procedure for the execution of a living will which is as follows:
1. The executor is required to sign the will in the presence of two, preferably independent, attesting witnesses.

2. The will shall then be countersigned by the Judicial Magistrate, after which the witness and the Judicial Magistrate record their satisfaction regarding the fact of voluntary execution and absence of any coercion or inducement or compulsion.

3. The living will is to be made in multiple copies which shall be kept in the custody of the Judicial Magistrate and with the registry of the jurisdictional District Court and the competent officer of the Municipality or Panchayat.

4. Further, a copy needs to be provided to close friends and family and family physicians, if any. There is as such no bar in making multiple copies of the living will and handing them to such persons.

Ensure you hand out the copies to those you may deem necessary and who may ensure that the healthcare providers are intimated and made aware at the relevant time.

What should be mentioned in the will?
A living will should be signed in the presence of two attesting witnesses and affirmed by a judicial magistrate.

In a scenario, wherein the individual is terminally ill, the doctor overseeing treatment is mandated to constitute a board of three experts, having 20 years of experience in the medical field.

Essentially, the contents of the said document should clearly state medical treatment guidelines. The instructions shall be clear and easy to understand.

Primarily the document shall show that the person making the said document is clear of the consequence of the document.

It has to be clearly stated in the living will under what circumstances should no medical treatment be provided or withdrawn.

The living will should also clearly indicate that the executor has reserved his right to revoke or amend it at any point in time.

Further, one or more guardians or close relatives should be nominated and entrusted with making decisions on behalf of the executor regarding the refusal or withdrawal of medical treatment by the directions in the living will in case it becomes necessary.

It is recommended to consult a trusted physician who can properly advise what ailments the person may incur based on his present health conditions as well as his family health history. As per the physician's recommendations, the person should address all such ailments in a detailed manner after considering and understanding the implications of accepting or rejecting a particular medical treatment.

To ensure accuracy, it's crucial to work with a qualified legal professional experienced in drafting living wills. Clearly communicate your preferences, review the document carefully before signing, and periodically update it as needed.

Are there any downsides to drafting a living will?
Although there remains no doubt that drafting a living will offer numerous benefits, one cannot overlook its certain limitations. Choudhuri lists some common ones:

A person in a healthy state at present can never determine with surety what they would want when they are in a terminally ill situation in the future.

Their refusal to any particular treatment is solely based on their assumption and their limited knowledge of what might ensue and not what they will face then in the future.

There also remains a possibility that with the advancement of medical science, an ailment that is not curable at present may be effectively treated and cured in the future.

Further, a person's living will may not be communicated to the health care provider at the relevant point of time in case the family or the persons entrusted decide not to.

The healthcare provider may also decide not to abide by the living will on the ground that the patient lacked proper understanding of the ailment and of the consequences of the withdrawal of medical treatment at the time of executing the document.

Disclaimer: This information does not replace professional advice. Consult a qualified specialist or your physician for personalised guidance.