How to create a living will and plan for end-of-life medical decisions with clarity

A living will is a legal document that lets individuals outline their medical treatment preferences if they become unable to communicate because of incapacitation.

A living will is a crucial document that outlines an individual's medical preferences in case they become unable to make decisions for themselves. Despite its importance, many people remain unaware of this essential tool, leaving their loved ones with the burden of making difficult end-of-life decisions.

To bridge this knowledge gap, the Hinduja Hospital in Mumbai has recently taken a step by offering counseling and assistance in drafting living wills, empowering individuals to take control of their own healthcare and ensuring their wishes are respected.

What are living wills?

A living will, or advance medical directive, is a legal document that lets individuals outline their medical treatment preferences if they become unable to communicate because of incapacitation.

Living wills empower individuals to dictate their own medical treatment in case of incapacitation, while also providing clarity and guidance to family members, sparing them the burden of making tough decisions.

Who can make a living will?

To create a valid living will, the individual should be an adult with full mental capacity, capable of clearly communicating their intentions. They should also be fully informed about the decisions they wish to make. Moreover, it's crucial that the decision to create a living will is made voluntarily, without any external pressure or coercion, ensuring that the individual's wishes are genuinely reflected in the document.

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Key components of a valid living will

A living will should be a clear and unambiguous written document that outlines the individual's preferred treatment approach and acknowledges the consequences of such a decision. It should specify the point at which treatment should be withdrawn and appoint an executor or designate a person to make decisions on the individual's behalf if they become incapacitated.

Additionally, the document should include specific directives, such as the mode of financing treatment and preferred place of care, to ensure the individual's wishes are respected.

Validity of living wills in India

In a 2018 judgment, the Supreme Court recognized the "right to die with dignity" as a fundamental right under Article 21, empowering adults to refuse medical treatment and life support through a living will or advance medical directive. The court specified that these directives would apply only in cases where a terminally ill patient is unable to communicate their wishes, allowing them to refuse further treatment.

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Enforcing living wills: Revised guidelines for a smooth process

In January 2023, a five-judge Supreme Court bench led by Justice KM Joseph streamlined the 2018 guidelines for living wills, simplifying the registration and enforcement process to make it more efficient and less cumbersome.

Under the revised guidelines, a living will requires signatures from the individual and two independent witnesses, followed by attestation by a notary or gazetted officer (a simpler process than the earlier requirement of a judicial magistrate). The document must also specify a designated guardian or relative authorized to make decisions about withdrawing medical treatment if the individual becomes incapacitated.

Further, the medical boards now require doctors to have a minimum of five years' experience, with at least two subject experts on the board. Both the primary and secondary boards are to be formed by the treating hospital, and they must provide their opinion within 48 hours of being referred a case. If the boards disagree or refuse permission, the patient's family can approach the High Court, which may then constitute a new medical board.

Living wills: A sensitive yet crucial aspect of healthcare

While living wills offer significant benefits, it's crucial to acknowledge the sensitivity surrounding end-of-life decisions. Misjudgments by doctors or conflicting decisions by relatives can have irreversible consequences, potentially ending a life that could have been saved. Therefore, it's essential to promote wider awareness, foster dialogue, and encourage active participation from society and stakeholders to advocate for robust yet practical laws governing the execution and enforcement of living wills.