Have you ever thought about what would happen if you were unable to make decisions about your medical care? It's not a pleasant thought, but it is an important one. This is where a Living Will comes in. A Living Will, also known as an Advanced Medical Directive (AMD) in India, is a legal document that allows you to express your wishes regarding medical treatment and end-of-life care if you are unable to communicate your preferences. It's a roadmap for your loved ones and medical providers to follow, and ensures that your wishes are respected, even if you can't express them at the time. So, let's dive in and get an overview on what a Living Will is, why it's important, and what the process of creating one really entails.

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

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 Path Ahead

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 customise 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 "Advance 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.

The Bottom Line

Ultimately, 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.

If you have questions about creating a Living Will, connect with our team at 80500 73434 or helpdesk@getyellow.in.

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