A Note on Living Will

A living will is a written statement in which a person expresses his desire as to which medical treatment is to be chosen in future circumstances; where he/she will not be able to express his/her consent regarding it. Therefore, Living Will is also called an advance medical directive.

Legal Formalities:

Now the question arises as to which legal formalities do we have to comply while making a living will? The legal formality for a living will is somewhat similar to a regular Will but has points where it is quite different from a regular one.

So, First of all, one should be an adult, i.e. 18 years of age or above.

Secondly, while making a Living Will, you should be of sound mind, capable of taking decisions, and as well able to understand them.

The third point which you have to remember is that the decision to make the Living Will (including its details) should be completely voluntary i.e. an outcome of free consent.

Fourthly, remember to write the details in your living will in a clear way. They should be specific and detailed as to what option the authorized person has to choose in respect of your medical treatment when you are not able to give consent.

The fifth point which you have to take into consideration is the instructions on the revocation of a living will. You have the authority to revoke the living will at any time before the situation comes where you are no longer able to give consent. You can also include any other instruction which you want to give about the revocation of Will.

The sixth point is about the declaration, you have to declare that you are well versed with the contents of Living Will, that you have understood all the consequences of making this Will, and that the Living Will is made with free consent.

Lastly, Do not forget to specify the name of a guardian or any close relative who shall be authorized to take decisions on your behalf at the relevant time, according to your living will. That person shall be responsible to give consent for specific medical treatment or withdraw the consent if you have expressed desire against that medical treatment. Therefore, make a wise choice is choosing such a person.

Registration Process:

The registration process of a living will is slightly complicated than that of a regular Will. But you don’t have to worry we have sorted it down in a simple manner.

  1. The living will have to be signed by you (the person making the Will) in presence of two witnesses. Prefer that the witnesses are independent to avoid future complications.
  2. The Living Will has to be countersigned by the Judicial Magistrate First Class (JMFC), who is designated for it by the concerned District Judge.
  3. JMFC will further assure that the living will is executed voluntarily or without any coercion or under influence by the witnesses.
  4. One copy of your Living Will shall be preserved with JMFC, one in the registry of Jurisdictional district court. One copy will be given to the respective municipality or Municipal Corporation or Panchayat if required.
  5. JMFC will make your family members aware of the fact that you have executed such a document.
  6. JMFC will hand over one copy of your living will to the family physician.

Implementation of Living Will:

  • When a person who has made a living will, is terminally ill and going through a prolonged medical treatment where there is no hope of recovery, then one has to make the treating physician aware of the advance directive or living will so be created by the said person (who is terminally ill). Then the physician has to ascertain the genuineness of the document from the office of JMFC before acting on it.
  • The Advance Directive will be implemented only after ascertaining that the particular illness is incurable or the patient is undergoing prolonged treatment or is surviving on life support.
  • The hospital where the patient is being treated will form a Medical Board consisting of the head of the treating department and three experts from the field of cardiology, neurology, general medicine, oncology, or psychiatry with an experience of a minimum of 20 years in their respective field. They shall form an opinion as to certify or not to certify the instructions made by the testator in a living will and will inform the same to the family of the testator. This decision of the medical board will be considered as a Preliminary Opinion.
  • Once the hospital certifies the instructions made in a living will or advance directive, the hospital will inform the same to Jurisdictional Collector.
  • The collector shall constitute another medical board consisting of the chief district medical officer, who will be the chairman of the board, and three expert doctors from the field of cardiology, neurology, general medicine, oncology, or psychiatry.
  • Then the chairman of this board will convey the decision of the board to jurisdictional JMFC before withdrawing any medical treatment. The JMFC shall visit the patient as early as possible and after examining all the aspects, will authorize the implementation of the decision given by the Board.
Note: If you have made more than one living will or advance directive, than the most recent one will be considered as valid.



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