Advance Directive – A Living Will

If you are seriously ill or incapacitated, it is a good idea to leave instructions for your care, writes Sonavi Kher Desai

With increasing longevity, it is common today to find people suffering from terminal illnesses or from varying forms of dementia.Bodily functions decline and people are unable to care for themselves physically or to use their mental faculties. In such situations of total dependency and inability to take informed decisions for themselves, the one way by which a person can take his/her own decision regarding his/her treatment is by means of an “Advance Directive” or a “Living Will”. It is a document prepared in advance by a person, expressing his/her directions with regard to medical treatment in case of a situation of total dependency.

The Supreme Court judgement delivered on 9 March 2018 states the requirements for executing an Advance Directive.

Who can execute it and how? 

The Advance Directive can be executed only by an adult who is of sound mind and in a position to understand and communicate the purpose and consequences of executing the document.It must be executed voluntarily by the person without any undue influence or coercion. It must be in writing, clearly stating as to when medical treatment may be withdrawn or that no specific medical treatment shall be given which will only delay the process of death, that may otherwise cause him/her pain and suffering and put him/her in a state of indignity.

Contents of the Directive

The directive should clearly state the circumstances for withholding or withdrawal of medical treatment. The instructions must be specific, clear and unambiguous.It should also:

1. mention that the executor may revoke the instructions at any time.
2. state that the executor has understood the consequences of executing the document.
3. specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorised to give consent to refuse or withdraw medical treatment in accordance with the Directive.

In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient’s wishes and will be given effect to.

Procedure for recording the Advance Directive

1. The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.
2. The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with a full understanding of all the relevant information and consequences.
3. The JMFC shall preserve one copy of the document in his office, in addition to keeping it in digital format.
4. The JMFC shall forward one copy of the document to the Registry of the jurisdictional District Court for being preserved. Additionally, the Registry of the District Judge shall retain the document in digital format.
5. The JMFC shall cause to inform the immediate family members of the executor, if not present at the time of execution, and make them aware of the execution of the document.
6. A copy shall be handed over to the competent officer of the Local Government or the Municipal Corporation or Municipality or Panchayat, as the case may be. The aforesaid authorities shall nominate a competent official in that regard who shall be the custodian of the said document.
7. The JMFC shall cause to hand over a copy of the Advance Directive to the family physician if any.