This article has been written by Anubhav Garg. He is a student of Delhi Metropolitan Education, Noida. This article discusses how to write a living will and how to execute it laying down step by step procedure with precise details.
Who can execute a living will?
Living Will also known as Advance Directives, Advance Healthcare Directives, Advance Medical Directives can only be executed by an adult with a sound mind and who is physically and mentally in condition to communicate, relate and comprehend the objectives and consequences of executing such advance directives document.
Living Will shall be voluntarily executed and without any coercion or inducement or compulsion and after obtaining the full knowledge or information about the conditions in which such Advance Directives can be executed? What treatments shall be given to the person and what not? Who can give effect to those Advance Directives? etc.
It is mandatory for a living will to be in written format clearly mentioning as to when can medical treatment be withdrawn or a specific kind of medical treatment shall be given which will merely have the effect of procrastinating the death of the sufferer that may otherwise only prolong the pain, anguish and suffering of that person.
What are the “Must contains” of Advance Directives?/Drafting a Living Will?
Nowadays, there are multiple ways you can draft your Living Will. You can draft it on your own, you can hire a lawyer to draft one for you, or you can get your Advance Directives drafted from the different websites like. Wide range of Templates are also available on the internet.
While your lawyer or you yourself are drafting the living will, you must take into account that it shall have the following contents in it: –
(1.1) Clear Indications
It should clearly mention the decision of the executor relating to the circumstances in which medical treatment can be withholding or withdrawal.
(1.2) Specific terms and certainty
The Living Will shall be in specific terms and the instructions with the clarity of a crystal and zero unambiguity should be there. Make a section with the name “Directions” clearly specifying the medical conditions where you don’t want any kind of medical treatment like vegetative state, terminal illness, coma with no reasonable grounds of recovery etc or conditions you do want medical treatment severe mental or physical injury making you only making you differently abled.
Clearly mention the kind of treatment you want and the kind of treatment you don’t want (which are only prolonging your life for no good, increasing your suffering, pain etc just to keep you on the earth)
It should mention the right of an executor to revoke the instructions/directives/authority at any time and the situations & circumstances under which he/she might do so. You can change your mind and revoke your will at any time for any rationale by informing the same to your agent and the treating physician.
(1.4) Executor’s Assertion
It should assert the fact that the executor has understood the consequences of executing such directives and the Living Will has not been entered into under any coercion, undue influence, duress etc.
(1.5) Naming an Agent
It should mention the name of a guardian or close relative who, in the event when the executor becomes/becoming incapable of taking decisions pertaining to the kind and nature of treatment to be given to him in relevant time shall have the authority to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.
Such Guardian/relative is called “agent”. Specify your agents carefully whom you trust and on whom you believe can take the second-best decision for you. Also, you can explicitly exclude any person/people from being your agent in your living will. Most people choose their spouse, children as their agents.
(1.6) Multiple Directives
In case, where there is more than one valid Advance Directive, out of which none has been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient‘s wishes and will be given effect to.
(1.7) Witness Statement
Make a witness statement mentioning that the witnesses are known to you and your trustworthy. Mention that they have been come forward to witness your Will voluntarily without any coercion, undue influence, fraud, misrepresentation.
For your convenience & comfort, we have made a selfless effort of helping you guys by also attaching a template of a Living Will/Advance Directives drafted by our experts. So that our readers can get everything in one single place without running to multiple articles and you don’t have to rely on blogs which are prone to mistakes and subjectivity. The Concept of Living Will is comparatively new in India and thus there are not many templates out there which can give you exactly what you are looking for. But that is not in our case, so here is the living will template from our side.
This Living Will’s declaration on my life is made on ________________(execution date) by me ________________(your name) born on _____________resident of _________________(your address) at_____________(place of execution). This declaration is addressed to my surgeons, my doctors, my medical care providers, my hospital, my family and all others who are concerned with my health care.
I, being a sound mind person and rational thoughts, wilfully, voluntarily and after the carefully considering and evaluating the consequences on me and on all the people I am concerned with and after consulting with my doctors and lawyers, making this declaration that if I am unable to communicate my wishes, desires and preferences by myself, consequent to which, I am unable to take part in decisions regarding the kind of treatment to be given and not to be given to me, I direct that concerned should take the directions mentioned herein into account for taking any decision regarding prolonging my life.
Further, this declaration and the directions contained herein are an expression of my legal right to refuse medical treatment and care. I expect and rely on my trust on the above-mentioned parties and make them legally and morally responsible to act in accordance with my directions envisaged herein. The above-mentioned parties should, therefore, be free from any legal liabilities for having followed this declaration and the directions contained herein.
- Withdrawing Life Support: If at any time, I become incompetent or incapacitated because of an incurable and irreversible injury, disease or illness, or if I reach to the stage of terminal illness or go into a coma with no reasonable expectation of recovering my consciousness, or reach a persistent vegetative state with no reasonable expectation of regaining significant cognitive functioning, or have a disease state from which I have no reasonable expectation of coming back to a reasonable quality of life as judged by my physician(s) who has/have personally examined me and has determined that my death is unavoidable and imminent except for death-delaying procedures and I have no reasonable grounds of recovering back, I hereby direct that in such situation I shall be deemed to deny any kind of life-sustaining infusions, nasogastric hydration and nutrition, which would only prolong the dying process be withheld or withdrawn.
- Limiting Treatment: I direct that, I wish to die a natural death with only the administration of medication, sustenance, or the performance of any medical procedure deemed necessary by my attending physician to provide me with comfort care. My treatment should be limited to the measures to keep me comfortable and pain-free, including any pain which might occur from the withholding or withdrawing of life-sustaining medical treatment and care.
- I direct that if I am in a condition as specified above in 1, I shall not be given following forms of medical treatment and healthcare:
- I direct that if I am in a condition as specified above in 1, I shall be given following forms of medical treatment and healthcare:
- I hereby direct that if I am in condition as specified above in 1 and also in condition(s)_____________ I shall get following kinds of medical treatment and care:
- Agent: I hereby appoint ________________(name of agent), who is my ___________(your relation with agent) resident of____________(address of agent) and_____________(name of second agent) who is my ___________(your relation with second agent) resident of ___________(address of second agent) as my agents for the execution of this living will. They shall be responsible for giving this declaration proper effect and honour my wishes, desires and preferences I have herein specified.
- Revocation: I hold the authority to revoke these directives at any time prior to reaching the situation as described in 1, by expressing the same to my agents.
This Living Will Declaration expresses my firm wishes, desires, and preferences and shall remain in force throughout my life unless I revoke it as mentioned in clause 7. I fully understand the importance and consequences of this declaration and I am fully competent to make it.
_________________ (Declarant’s Signature)
______________________ (Declarant’s Address)
- I declare that the declarant who signed and acknowledged this Living Will is personally known to me and that he/she has signed and acknowledged this Living Will Declaration in my presence, and that he/she appears to be a person sound mind and under no coercion, fraud, or undue influence.
____________________(First Witness’ Signature)
(First Witness’ Name)
(First Witness’ Address)
- I declare that the declarant who signed and acknowledged this Living Will is personally known to me and that he/she has signed and acknowledged this Living Will Declaration in my presence, and that he/she appears to be a person of sound mind and under no coercion, fraud, or undue influence.
.__________________(Second Witness’ Signature)
(Second Witness’ Name)
(Second Witness’ Address)
Registration of Living Will? When and where to Sign? Who shall be the Witnesses?
In India, there is no statute which deals with passive euthanasia. Though a bill has been proposed but it hasn’t been passed yet. But the registration of the Living Will is mandatory in India. We have laid down the complex and technical registration procedure of the Living Will in a simple and presentive manner as follows: –
(2.1) Independent Witnesses
The document shall be signed in the presence of two independent attesting witnesses by the executor.
(2.2) JMFC Signature
It is then countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge. The JMFC preserves one copy of the document in his office, in addition to keeping it in digital format.
(2.3) JMFC’s Inspection
The witnesses and the jurisdictional Judicial Magistrate First Class shall record their satisfaction that all the documents have been executed voluntarily and with free will without any inducement or coercion or compulsion and with a full understanding of all the relevant information and its consequences.
(2.4) Forwarding to District Court
The JMFC then forwards a copy of the Advance Directives to the Registry of the jurisdictional District Court for registration and preservation.
(2.5) Informing Family
The JMFC, then informs the immediate family members of the executor, if they are not present at the time of execution of such living will, and make them aware of the execution of the document.
(2.6) Informing Family Physicians
In case the family of the executor have a personal physician the JMFC also handovers a copy of the Advance Directive to that family physician.
How Living Will is given effect?
(3.1) Authenticity Test by Physician
When the clock finally strikes and the executor is in a very severe condition and is going through the prolonged medical treatment with no apparent signs of recovery and betterment, the treating physician, when made aware about the Advance Directive, ascertains the genuineness and authenticity of them from the jurisdictional JMFC before acting upon it.
Physicians should be completely convinced that the executor is terminally ill and is only holding onto life with medical life-support and that his illness is incurable.
(3.2) Informing Family
If the physicians treating the executor are satisfied that the instructions given in the directives are needed to be acted upon, they inform the executor’s guardian/close relatives, about the nature of the illness, the available medical care for that illness and consequences of alternative forms of treatment.
(3.3) Cross-Check by Treating Physicians
Treating physicians also make sure that executor understands the information provided in Advance Directives, he has considered options available other than removing life support and has come to a firm view that the option of withdrawal of medical treatment is the best for him.
(3.4) Formation of Medical Board by Hospital
The physician/hospital where the executor has been admitted for treatment form a Medical Board comprising of the Head of the treating Department and minimum three experts from the fields of general medicine, neurology, psychiatry or oncology and cardiology, nephrology with an overall experience in the medical field of at least twenty years. This board pays a visit to the patient in the presence of his guardian or close relative.
After conducting the prognosis of the executor, they form an opinion whether to certify or not carrying out the instructions of the Living Will of withdrawal of further medical treatment. This decision by the Medical Board of the hospital is regarded as a preliminary opinion.
(3.5) Formation of Medical Board by Collector
In case, if the Hospital Medical Board grants the permission that the instructions contained in the Advance Directives can be carried out, the physician or the hospital shall forthwith communicate to the jurisdictional Collector pertaining to the proposal.
The jurisdictional Collector then immediately constitutes a Medical Board comprising of Chief District Medical Officer and three expert doctors from the fields of similar as mentioned above (who were not a part of the previous Hospital Medical Board).
They jointly pay a visit to the executor and if they concur with the initial decision of the Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive.
(3.6) Asking wishes of executor/guardian
The Board formed by the Collector shall beforehand ask the final wishes of the executor if the executor is in a position to express and is capable of understanding the consequences of the withdrawal of medical treatment.
In case, the executor is incapable of taking the decisions, then the approval of the guardian as nominated by the executor in the Living Will shall be obtained regarding cutting off of medical treatment to the executor to the extent of and in accordance with the clear instructions given in the Living Will.
(3.7) Informing JMFC
The Chief District Medical Officer communicates the decision of the Board to the jurisdictional Judicial Magistrate First Class before implementing the decision of withdrawing of medical treatment given to the executor.
The JMFC shall pay a visit to the executor the soonest and, after examining all facets, authorise the implementation of the decision of the Board.
It is always open to the executor to revoke the Living Will at any stage before it is acted upon and administered.
Till now we learnt about the procedure by which Living Will is executed and given effect. No problems and hurdles were there and everything was going the way it should ideally. But life is not always that easy on us, That’s why we should always hope for the best and prepare for the worst. Now let us discuss a situation and a common problem that pops up in giving effect to Advance Directives.
What if permission is refused by the Medical Board?
Filing of Petition
In case, if the permission to withdraw the medical treatment is not given by the Medical Board, the executor or someone from his family members or even any treating doctor or someone from the hospital staff has full liberty to approach the High Court by way of a writ petition under Article 226 of the Indian Constitution.
From there, the Chief Justice of the said High Court constitutes a Division Bench to decide upon the grant of approval or to refuse the same.
Formation of Medical Board by Court
The High Court shall hear the application expeditiously after affording an opportunity to the State counsel.
It would be the discretion of the High Court to constitute a Medical Board to perform another prognosis on the patient and submit a report about the feasibility of implementing the instructions envisaged in the Living Will.
Rendering the Decision
High Court tries the best to render a decision at the earliest keeping in mind the principles of the best interests of the patient.
How can Advance Directives be revoked?
An individual can revoke or alter the Living Will at any time when he/she has the capacity to do so by following the same procedure as for the recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.
What are the situations in which Advance Directives are inapplicable?
1. Reasonable Grounds of Recovery
An Advance Directive will not be enforceable to the treatment in consideration if there are sensible reasons for accepting that certain conditions exist which if the individual making the mandate couldn’t foresee at the time of writing such Advance Directive and which would have influenced his choice if he had foreseen them. Example: Development of new Medical machinery, the discovery of a new cure etc.
2. Ambiguous Living Will
Medical Boards don’t give effect to the Advance Directive if they are not clear and unambiguous and held the same as inapplicable. In such a case, the general guidelines meant for patients will be applicable for the treatment without any interference from Advance Directives.
3. What treatment will be given
Where the Hospital Medical Board goes for a decision not to implement Living Will while treating the executor, then it shall write an application to the Medical Board formed by the Collector for considering and appropriating the direction on the Living Will.
What if there is no Living Will?
There are many cases where the patients won’t be having a living will as it has got legal recognition by the Supreme Court of India recently in the litigation of Common Cause (A Regd. Society) vs Union Of India on 9 March 2018.
We suggest that one should make his/her Living Will before crossing their forties. It will give you enough time to rethink the nature of illness/serious accidents when you want medical support/ treatment to be withdrawn.
In the absence of Advance Directives, your well-wisher might refuse the right decision at that because of the overwhelming emotion and attachment. Having a Living Will also reduces the burden on your loved one to take the difficult decision in an already difficult time. They won’t have to bear the burden of taking the decision of either keeping you alive with immense suffering and pain or free you from pain once and for all.
Additionally, your wishes are more likely to be respected by your well-wishers in case of Living Will being there.
In cases where there is no Living Will, the procedure and safeguards are the same as applied to cases where the Living Wills are in existence and for the purpose of same, following procedure shall be followed: –
(i) Formation of Medical Board by Hospital
In situations where the patient is critically ill and experiencing drawn out treatment in regard of sickness which is and where there is no desire for being cured, the doctors may advise the emergency clinic which, thusly, will establish a Hospital Medical Board in the way same way as explained before.
(ii) Taking Family Suggestions
The Hospital Medical Board shall discuss with the family physician and the family members. In such meeting, the family members can convey the pros and cons of withdrawal of further medical sustenance to the patient and if they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will only be considered as an initial opinion.
(iii) Formation of Medical Board by Collector
In case, in the event that the Hospital Medical Board confirms the alternative of withdrawal or refusal of further therapeutic treatment, the emergency clinic will quickly illuminate the jurisdictional Collector.
The jurisdictional Collector shall at that point establish a Medical Board including the Chief District Medical Officer as the Chairman and three specialists from the fields and experience referred before.
The Medical Board comprised by the Collector will visit the patient for his physical examination and, in the wake of considering the medical reports, may agree with the verdict of the Hospital Medical Board. In that occasion, insinuation will be given by the Chairman of the Collector designated Medical Board to the JMFC and the relatives of the patient.
(iv) Examination by JMFC
The JMFC visits the patient at the most soonest and checks the medical reports, analyse the state of the patient, talk about it with the relatives of the patient and, whenever fulfilled in all regards, may embrace the choice of the Collector designated Medical Board to pull back or deny further medicinal treatment to them in critical condition quiet.
What if the Medical Board didn’t give permission (in case of absence of Living Will)?
As in the case where the Living Will was present and Medical Board didn’t give permission to apply those directives, the similar situation can arise in a case where the Medical Board constituted by District Collector didn’t approve the passive euthanasia and withdrawing medical treatment of the patient. In such a case, the following procedure can be followed by, the nominee of the patient or the family member or the treating doctor or the hospital staff
(i) Filing Petition
They can seek permission from the High Court to withdraw life support by way of a writ petition under Article 226 of the Indian Constitution and in such case, the Chief Justice of the said High Court shall constitute a Division Bench which shall decide to grant approval or not in the same way as mentioned earlier.
(ii) Intimation by High Court
The same is also be intimidated by the Magistrate to the High Court. High court keeps it in a digital format by the Registry of the High Court apart from keeping the hard copy which is destroyed after the expiry of three years from the death of the patient.
Note*: All the directions with regard to Advance Directives and the safeguards as mentioned here in below are made from the information envisaged in the judgment of Supreme Court in case of Common Cause (A Regd. Society) Versus Union of India. All this information will be subject to the statute which the Indian government might make in the future in this regard.
I have read the article dated 11th July, 2019 by Mr Uzair Ahmad Khan regarding Living Will. I have also gone thru the judgement of SC on this aspect, and am interested in writing my Living Will. Can you assist me in writing the will and getting it registered with JFMC. How much will be the fee for the services to be rendered?