Living Will

A living will is a directive or direction as to how a person prefers to be medically treated if

that person is unable to make any decisions due to an illness, incapacity or coma.
Living will is an important part of advance care planning, which involves discussing and
preparing for future health care decisions in the event you can’t make them.

The Decisions are enclosed into Legal Documents.

It does not deal with the disposal of any property during one lifetime or death.
However, On the flip side, Will/Testament is a formal declaration to the distribution of one’s
property, guardian of children, creation of trusts, etc which is desired to be carried into
effect upon the death of a person.

A living will comes into effect while individuals are in a vegetative state (Awake but showing
no signs of awareness). By planning ahead, you can get the medical care you want, avoid
unnecessary suffering and relieve caregivers of decision making and burdening during
moment of crisis or grief.

Certain questions in regard to living will

 Do I have to have a lawyer to make a Living Will?

No. The law does not require that a lawyer prepare your Living Will.

 Once a living will is signed, how long is it effective.

A Living Will lasts until you cancel it. You may change your mind after signing a Living
Will. If you wish to cancel your Living Will, you should tear up your copy and notify
other people (such as family members and doctors) who also have a copy.

 Once you have made a living will, what is next?

Once you have signed your Living Will and your witnesses have also signed it, you
should have several copies made. The original should be kept with your other
important papers, like your Will. These papers should be kept in a place where
someone can find them. They should NOT be placed in a safe deposit box, as that will
likely not be opened until after your funeral.
It is also important to give copies of your living will to other people, like family
members and doctors.

Illustration of living will

Emily, a 60-year-old woman, had always been a firm believer in making her own choices,
even in matters concerning her health.

Emily further created a living will to eradicate the burden of having her loved ones making
difficult decisions about her medical care if Emily were to be incapacitated.
 CPR: Emily wishes to not receive CPR if her heart were to stop.
 Mechanical Ventilation: she wished to not be placed on a ventilator if she could not
breathe on her own.
 Tube Feeding: Emily expressed that she did not want to receive nutrition or
hydration through a feeding tube.
 Organ Donation: Emily stated her intention to donate her organs and tissues for
transplantation.
Euthanasia
Euthanasia is deliberately ending a patient’s life in order to limit or relieve a patients
suffering.
It allows the patient to have a peaceful death in contrary to the slow, painful and undignified
death.

Euthanasia is of several types:

 Active Euthanasia : Killing a patient by active means, i.e injecting or forces to end a
person’s life.
 Passive Euthanasia : Intentionally letting a patient die by withholding artificial
support, such as Ventilator, Tube Feeding, Dialysis, etc.
 Voluntary Euthanasia : Euthanasia which is conducted with consent.
 Non-voluntary: When euthanasia is conducted on a person who is unable to consent
due to their current health condition. In this situation, the decision is made by
another appropriate person, on behalf of the individual, based on their quality of life.

Constitution of India: ‘Right to life’ is a natural right embodied in Article 21 but suicide is an
unnatural termination or extinction of life and, therefore, incompatible and inconsistent with
the concept of ‘right to life’. It is the duty of the State to protect life and the physician's duty
to provide care and not to harm patients. If euthanasia is legalised, then there is a grave
apprehension that the State may refuse to invest in health (working towards Right to life).
Legalised Euthanasia would lead to decline in quality of care for severely ill patients.

Hence Euthanasia in India is considered illegal and declared that there should not be any
welfare of the state in this matter for any form.

However, in the light of recent years, the court has declared ‘Passive Euthanasia’ as a legal
reality in India.
It suggests that a patient suffering from a terminal disease has reached a point of no return,
she should have the right to refuse artificial life support (passive euthanasia).
The Thin Line Between Living Will and Passive Euthanasia

Passive Euthanasia: Passive euthanasia involves withdrawing or withholding medical

treatment, allowing a terminally ill or seriously injured patient to die naturally. It occurs
when medical professionals or caregivers refrain from using extraordinary measures to
prolong life, such as ventilators or feeding tubes. Passive euthanasia is typically carried out
based on the patient's best interests, medical ethics, and sometimes, legal guidelines.

Living Will: A living will, on the other hand, is a legal document that allows individuals to
specify their medical treatment preferences in advance

The thin line between the two lies in the legal and ethical framework. A living will is a
proactive, legal document that communicates a person's preferences, while passive
euthanasia is a medical decision made by healthcare professionals and caregivers based on
medical ethics and the patient's best interests, often in consultation with the patient's family
or legal representatives.

Judgements & Amendments in regard to Living Will and Passive Euthanasia

1. Common Cause v. Union of India1 : According to the judgement, an adult in his

conscious mind is permitted to refuse medical treatment or voluntarily decide not to
take medical treatment to embrace death in a natural way, under certain conditions.
It also laid down guidelines for ‘living will’ made by terminally ill patients who
beforehand know about their chances of slipping into a permanent vegetative state.
The court specifically stated that “Dignity in the process of dying is as much a part of
the right to life under Article 21. To deprive an individual of dignity towards the end
of life is to deprive the individual of a meaningful existence.”

2. The Supreme Court revamped2 the “cumbersome” procedure impeding the execution
of passive euthanasia, laying down a definite timeline for medical experts, and
cutting the red tape involved in the preparation of a living will by those who want
withdrawal of treatment essential to life when they become terminally ill.
a. living will being in the custody of the district court concerned — as directed
by the court in 2018, The bench said that the document will be a part of the
national health digital record which can be accessed by hospitals and doctors
from any part of the country.
b. Another crucial change brought about by the bench pertained to the
constitution of the primary and secondary board of doctors who would
examine the condition of the patient to take a decision whether the
instructions given in the advanced directive should be carried out.
References :-
1
Common Cause v. Union of India (2018) 5 SCC 1
2
Krishnadas Rajgopal, Supreme Court eases procedures for terminally ill patients to withdraw medical
treatment, THE HINDU, (February 03, 2023 12:22 pm), https://www.thehindu.com/supereme court eases
method to withdraw medication
 https://www.nia.nih.gov/health
 https://www.mayoclinic.org/Living will
 https://www.nhs.uk/euthanasia-and-assisted-suicide/
 https://www.medicalnewstoday.com/articles/182951 - history
 https://thewire.in/passive-euthanasia-now-a-legal-reality-in-india
 https://economictimes.indiatimes.com/over-4-years-after-landmark-judgement-
on-living-will-sc-to-modify-cumbersome-guidelines
 https://www.thehindu.com/supreme-court-eases-procedures-for-terminally-ill-
patients-to-withdraw-medical-treatment