Living Wills: Everything You Should Know About Planning Ahead

No life that breathes with human breath has ever truly longed for death.

However, the perception cannot be same every time and there comes a phase in life when the spring of life gets still and movement of body motionless.  Life suddenly turns colourless and the word life‘ becomes still and blurred with the inevitable i.e. death.

Life to be lived with dignity should in the same manner where death is inevitable should be dealt with dignity a value to be aspired for and a moment for celebration.

In India, a "living will," or advance medical directive gives one the right to determine the course of your medical treatment, which can include the refusal or withdrawal of life support. The Living Will is a legal document wherein allowing a person of sound mind to specify their end-of-life medical treatment wishes for situations like a terminal illness such as an incurable condition, diagnosed by a doctor, that is expected to result in death within a specified short period, viz; includes advanced-stage cancers, severe heart disease, kidney failure, and neurological disorders or persistent vegetative state i.e.  a chronic condition of severe brain damage where an individual is awake but shows no signs of awareness or conscious interaction with their environment. 

The landmark judgment on living wills in India is Common Cause (A regd. Society) v. Union of India (2018), where the Supreme Court of India legalized passive euthanasia and affirmed the right to die with dignity as a fundamental right under Article 21 of the Constitution. This judgment established comprehensive guidelines for living wills, allowing individuals to make advance medical directives for end-of-life care with dignity . Subsequent modifications in 2023 simplified the procedural aspects of executing a living will, making the process more accessible.  

Key Aspects of a Living Will :

Living will

• A living will is a written, legal paper, called a document, that includes details about the medical treatments you would and would not want to be used to keep you alive. It's used when you are unable to decide yourself. It also includes your choices for other medical decisions, such as pain management or organ donation.

• In deciding your wishes, think about your values. For example, think about how important it is to you to be independent and self-sufficient. Think about what situations might make you feel like your life is not worth living. Would you want treatment to extend your life in any situation or in all situations? Would you want treatment only if a cure is possible?

• You should list many possible end-of-life care decisions in your living will. Talk to your healthcare professional about any questions you may have about the following medical decisions

Advance Directive:

• A living will is a legal document prepared in advance by a person who is currently capable of making their own medical decisions. Advance directives guide choices for healthcare professionals and caregivers in certain situations. For example, a medical team may use advance directives when you're unable to talk and are terminally ill, seriously injured, in a coma, in the late stages of dementia or near the end of life.

• Advance directives aren't only for older adults. You can have unexpected accidents, illnesses or end-of-life situations happen at any age. So it's important for all adults to prepare these papers.

• By planning ahead, you can get the medical care you want and avoid unnecessary suffering. You also can relieve caregivers of decision-making burdens during times of crisis or grief. And you help lessen confusion or disagreement about the choices you would want people to make on your behalf.

Change of Advance Directives

• You can change your directives at any time. If you want to make changes, you must fill out a new form. Give new copies to your healthcare professional and others and get rid of all old copies. Specific requirements for changing directives may vary by state.

• You should talk with your primary healthcare professional about any changes. Make sure a new directive replaces an old directive in your medical file. New directives also must be added to medical charts in a hospital or nursing home. Also, talk to your healthcare agent, family and friends about changes you have made.

Purpose:

• It details preferences for medical care or termination of support when the person is unable to communicate or make decisions for themselves. 

• The person may draw up a medical or healthcare power of attorney which is a type of advance directive in which you name a person to make healthcare decisions for you when you are unable to do so. In some states this directive also may be called a durable power of attorney for healthcare or a healthcare proxy. 

• Choosing a person to act as your healthcare agent is important. Even if you have other legal papers about your care, you can't anticipate all situations ahead of time, such as emergencies and illnesses. And in some situations, someone will need to decide about your likely care wishes. Aim to choose a person who:

  i) Meets your state's requirements for a healthcare agent.

  ii) Is not your healthcare professional or a part of your medical care team.

  iii) Is willing and able to discuss medical care and end-of-life issues with you.

  (iv) Can make decisions that follow your wishes and values.

  (v) Can speak up for you if there are disagreements about your care.

• The person you name may be a spouse, other family member, friend or member of a faith community. You also may choose one or more other people in case the person you chose is unable to full fill your wishes.

Autonomy:

It serves as an assertion of an individual's right to bodily integrity and self-determination in healthcare. 

How to make a living will in India:

Create a Document: A person of sound mind, without coercion, prepares the document outlining their medical preferences voluntarily. The Living Will is required to be signed in presence of two independent Witness who shall attest the same and certified by a notary or gazetted officer before being sent to the jurisdictional Judicial Magistrate First Class for verification and to the district officer for safekeeping.  

Verification: The document is then sent to the jurisdictional Judicial Magistrate First Class (JMFC) for verification and to the relevant district officer for safe custody. 

Dying with dignity: Breaking the taboo around 'living wills' in India.

Conclusion

A living will comes into effect when the executant of the writing becomes terminally ill and is undergoing prolonged medical treatment and thus has a right to die with dignity, which is a part of personal liberty, as an inextricable facet of Article 21 of the Constitution.

Author :

Saroj Chirawawala  Solicitor & Advocate , Bombay