In a world where medical advancements can prolong life through various treatments, the concept of a “Living Will” becomes increasingly important.
Advance care planning is crucial as it ensures that Living Wills are accessible and healthcare wishes are recognised. Keeping copies of Living Wills with various parties can help make care preferences easily available when needed.
A Living Will is a legal document that outlines a person’s wishes regarding medical treatment in situations where they are unable to communicate their decisions.
This article delves into the legal framework surrounding Living Wills in India, exploring how they are used, their legal standing, and what individuals need to know when drafting one.
What Is A Living Will?
A Living Will, also known as an advance directive, is a written statement that expresses an individual’s wishes regarding medical treatment if they become incapable of making decisions.
This document is crucial in ensuring that a person’s health care preferences are honoured when they cannot voice their choices due to illness or incapacity, guiding health care decisions during emergencies.
The Importance Of A Living Will
Living Wills serve several important functions:
- Respecting Autonomy: They ensure that a person’s healthcare choices are respected even when they cannot actively participate in decision-making. Living Wills play a crucial role in communicating and respecting an individual's health care wishes.
- Guiding Family Members: They provide clear instructions to family members and healthcare providers, reducing the emotional burden of making tough decisions.
- Preventing Unwanted Treatment: They help prevent unnecessary or unwanted medical interventions that might prolong life without improving the quality of life.
The Legal Recognition Of Living Wills In India
The legal framework for Living Wills in India has been evolving over time. Traditionally, Indian law did not recognise the concept of Living Wills.
However, significant changes have been made to accommodate this important document.
Supreme Court's Landmark Judgement
In March 2018, the Supreme Court of India delivered a landmark judgement in the case of Common Cause (A Regd Society) vs Union of India, which recognised the right to die with dignity as a fundamental right under Article 21 of the Indian Constitution.
This ruling allowed for the legal recognition of Living Wills and advance directives in India.
Conditions For A Valid Living Will
For a Living Will to be considered valid in India, certain conditions must be met:
- Written Document: The Living Will must be in writing, clearly stating the medical treatments the individual wishes to receive or refuse.
- Competence: The person creating the Living Will must be of sound mind and competent at the time of drafting the document. It is also important to appoint a capable agent through a health care power of attorney to make medical decisions if the individual becomes unable to do so.
- Voluntary Creation: The Living Will must be created voluntarily, without any undue influence or coercion.
- Specificity: The document should specify the conditions under which the instructions apply, such as terminal illness or irreversible coma.
- Signatures: The Living Will must be signed by the person creating it, along with two independent Witnesses.
The Role Of Family Members & Healthcare Providers
Family members and healthcare providers play a critical role in the implementation of Living Wills:
- Family Members: They may need to present the Living Will to healthcare providers and ensure that the individual’s wishes are followed. Appointing a health care agent through a medical power of attorney allows this individual to make crucial medical decisions when the patient is unable to do so.
- Healthcare Providers: Medical professionals must respect the directives outlined in a Living Will, provided it meets all legal requirements. A health care proxy can help clarify the individual's wishes during critical moments, reducing confusion among family members regarding treatment choices.
Life-Sustaining Treatment: Key Considerations
Living Wills often address the use of life-sustaining treatments, which are medical procedures that can prolong life but may not necessarily improve its quality. When considering life-sustaining treatments, it is crucial to take into account the potential impact of a serious illness, as it can significantly influence medical care decisions and end-of-life care. Examples include:
- Mechanical Ventilation: Assisting or replacing breathing using a machine.
- Feeding Tubes: Providing nutrition through a tube inserted into the stomach.
- Cardiopulmonary Resuscitation (CPR): Emergency procedures to restart the heart or breathing.
A Living Will allows individuals to specify whether they want to receive such treatments or prefer to withhold them under certain circumstances.
Medical Treatment Preferences in a Living Will
In addition to life-sustaining treatments, a Living Will can also include preferences regarding other aspects of medical care and treatments:
- Pain Management: Individuals can specify their desire to receive pain-relieving medications, even if they are terminally ill.
- Organ Donation: The Living Will can include instructions about organ donation after death.
- Do Not Resuscitate (DNR) Orders: A Living Will can include a DNR order, indicating that the individual does not wish to undergo CPR if their heart stops.
The Process Of Creating A Living Will In India
Creating a Living Will involves several steps:
- Consultation: It’s advisable to consult with a healthcare provider or legal expert to understand the implications of a Living Will. Understanding the implications of a power of attorney, especially a medical power of attorney, is crucial as it designates someone to make healthcare decisions on your behalf when you are unable to do so.
- Drafting: The document should clearly state the individual’s medical treatment preferences.
- Witnesses: The Living Will must be signed in the presence of two independent Witnesses.
- Requirements: Below are requirements for a valid Living Will:
- The Living Will must be hand signed in the presence of two independent Witnesses
- The Living Will must be attested before a notary or Gazetted Officer
- The Executor (the person writing the Living Will) must intimate the Guardian (Healthcare Proxy) and the family physician, if any.
- A copy of the Living Will must be handed over to the custodian designated by the municipal corporation.
- The Executor may also choose to incorporate their Living Will as a part of the digital health records, if any.
- Communication: The individual should inform family members and healthcare providers about the existence of the Living Will and provide copies if necessary.
The Role Of Advance Directives In End-of-Life Care
Advance directives, including Living Wills and healthcare proxies, are crucial tools in end-of-life care:
- Healthcare Proxy: An advance directive can appoint a healthcare proxy or agent who is authorised to make medical decisions on behalf of the individual if they are unable to do so. This role, often referred to as healthcare power, is essential for ensuring that medical decisions are made by a trusted individual, avoiding conflicts and honoring the individual's medical wishes.
- End-of-Life Care: Advance directives guide healthcare providers in delivering care that aligns with the individual’s wishes, ensuring dignity in end-of-life situations.
Legal Challenges and Ethical Considerations
While Living Wills are legally recognised in India, they are not without challenges:
- Ethical Dilemmas: Healthcare providers and family members may face ethical dilemmas when interpreting the wishes outlined in a Living Will.
- Legal Disputes: There may be disagreements among family members or between family members and healthcare providers regarding the interpretation of the Living Will.
- Court Intervention: In cases where the validity of a Living Will is disputed, the matter may be brought before a court for resolution.
The Role of the Court In Enforcing Living Wills
The Indian legal system provides mechanisms for enforcing Living Wills:
- Court Orders: In cases of dispute, the court can issue orders to ensure that the individual’s wishes are respected.
- Legal Guardianship: If a person is unable to make decisions and has not created a Living Will, the court may appoint a legal guardian to make decisions on their behalf.
The Impact Of Religious & Cultural Beliefs
India's diverse cultural and religious landscape can influence the acceptance and implementation of Living Wills:
- Religious Considerations: Some religious beliefs may oppose the idea of withholding life-sustaining treatment, affecting the creation and enforcement of Living Wills.
- Cultural Norms: Cultural norms surrounding death and dying can also impact how Living Wills are perceived and implemented.
The Future Of Living Wills In India
As awareness of Living Wills grows, they are likely to become an integral part of healthcare planning in India:
- Increased Awareness: Educational campaigns and public awareness initiatives can help increase the understanding and acceptance of Living Wills.
- Legal Reforms: Ongoing legal reforms may further clarify the status of Living Wills and advance directives in India, making them more accessible and enforceable.
Estate Planning & Living Wills
Living Wills are an essential component of comprehensive estate planning:
- Holistic Planning: Along with Wills and Trusts, Living Wills ensure that an individual’s healthcare preferences are respected, complementing other aspects of estate planning.
- Coordination: It's important to coordinate the Living Will with other estate planning documents to avoid conflicts or misunderstandings.
The Bottom Line: How Yellow Can Help
Living Wills empower individuals to take control of their healthcare decisions, ensuring that their wishes are respected even when they cannot communicate them.
In India, the legal framework for Living Wills is still evolving, but the 2018 Supreme Court judgment has laid a strong foundation for their recognition and enforcement.
By understanding the legal requirements and best practices for creating a Living Will, individuals can make informed decisions about their healthcare and end-of-life care, providing peace of mind for themselves and their loved ones.
At Yellow, we can help you draft all legal estate planning documents, including health care advance directives or Living Wills. Our experts have more than 50 years of experience.
