Typically, a Will comes into effect after we pass on. But globally, there is a similar document called a Living Will. This is a relatively unexplored concept in India. It refers to a written document that a person uses to give his explicit instructions in advance about the medical treatment to be administered if he becomes incompetent or is unable to communicate.
In many countries, the concept of Living Wills has been widely encouraged. Under the Indian Constitution, Article 21 gives every citizen a fundamental Right to Live with Dignity. An Indian NGO, Common Cause, had approached the Hon’ble Supreme Court in 2005 (Order dated 9 March 2018 in (2018) 5 SCC 1), praying for a declaration that the 'fundamental right to live with dignity' should be inclusive of the 'right to die with dignity.'
Passive euthanasia is a condition where there is withdrawal of medical treatment with the deliberate intention of hastening the death of a terminally-ill patient. In 2011, the Hon’ble Supreme Court, in the matter of Aruna Ramchandra Shanbaug v. Union of India, recognised the concept of passive euthanasia.
The Centre had opposed recognition of Living Wills. It stated that the consent for removal of artificial support systems given by a patient may not be an informed one. Various examples of the provisions and practices in various countries in disallowing creation of Living Wills by patients were cited and relied upon.
In its landmark judgment in 2018, the Hon’ble Supreme Court accepted the concept of living Wills and held that the right to die with dignity is a fundamental right under the contours of the Indian constitution. Every adult human having the mental capacity to take an informed decision shall have the right to refuse medical treatment, including withdrawal from life saving devices. The Court concluded that a person of competent mental faculty is entitled to execute an advance medical directive, keeping in mind various safeguards.
Making a living Will with an advance medical directive
The person should be:
-An Adult who is in a sound state of mind;
-Capable of communicating their intention clearly;
-Who has full knowledge or information with regards to the steps he or she wishes to take;
-Further, such person should in no circumstances be forced or coerced into making the decision and should make the Will voluntarily.
What should a Living Will state?
It should be a clear and unambiguous written document. The Will should mention that the person making it is aware of the consequences of making a Living Will and the individual’s preferred treatment style. The Living Will should say at what point treatment should be withdrawn.
It must enlist the name of the person / appoint an executor to take a decision on the behalf of such a person making a living Will, in case of the maker’s incapacity to do so. Further, it should consist of clear directives such as mode of financing the treatment, preferred place of treatment and so on.
Procedure for execution of the Living Will
Such a Will should be signed by the person making the Will in the presence of two witnesses and the concerned Judicial Magistrate of First Class (JMFC).
The JMFC should also countersign this Living Will. The JMFC’s office must preserve a physical and a digital copy of the Living Will. Further, the JMFC shall ensure that the Living Will is enforced once the writer of the instrument becomes incapacitated. The treating physician shall confirm the authenticity of the living Will with the JMFC before acting upon it.
Who should you hand your Living Will over to?
The living Will must be handed over to trusted people for its execution, if the need arises. The concerned family members must be informed in order to prevent any misuse of the document in the future. An individual making a living Will must also consider approaching a doctor before signing such a document.
The JMFC shall inform the immediate family members of the executor, if not present at the time of execution, and make them aware about the execution of the document and contents thereof.
It is also pertinent to inform the executor of the Will, as to how to follow through with the same.
A Living Will would reduce the mental, emotional and financial strain of the loved ones of an individual. It provides for financial directions, which may benefit the loved ones of a patient, who may then not have to worry about the cost of treatment.
The future of Living Wills in India
Living Wills are relatively unexplored and novel in India. There is little evidence of how such living Wills are executed. Also, there is a lack of detailed legislation and a standard operating procedure for the same. As new concepts evolve, we see judicial interpretation of it.
In India, you can make a living Will, but due to lack of precedence, the path is complicated.
However, it is important to note that the benefits of making a living Will are numerous. Such an instrument acts as a future directive of the wishes of an individual even in circumstances when he cannot so express it. It prevents unnecessary prolongation of medical treatment for an individual who may not so desire it or may be suffering from a terminal illness.