A 73-year-old Hindu gentleman finds himself in a thoughtful phase of life. He lives comfortably with his wife and two daughters. Currently in good health, his mind turns to future uncertainties. He wishes to make a clear statement. If a critical illness ever leaves him dependent on a ventilator or similar life-support with no hope of recovery, he wants to refuse such treatment. His desire is for a peaceful, natural death. He asks a crucial question: can he simply include this preference in his last will and testament?
The Clear Legal Answer: A Will Is Not the Right Document
Legal experts provide a definitive response. You should not include such medical treatment wishes in your will. The reason is foundational. A traditional will only comes into legal effect after a person dies. It cannot govern decisions made while the person is still alive, even if critically ill or incapacitated. Using a will for this purpose would be ineffective precisely when the family needs guidance.
The Solution: The Advance Medical Directive (AMD)
Instead, individuals should create a separate legal instrument known as an Advance Medical Directive (AMD). Many people refer to this document as a 'living will'. The Supreme Court of India has formally recognized the validity of AMDs. The court has also established clear guidelines for creating and enforcing these directives, giving them legal weight across the country.
An AMD allows a person with sound decision-making capacity to record their wishes regarding future medical care. This applies specifically to situations where they might become incapacitated and unable to communicate. In this document, you can explicitly state a desire to withhold or withdraw specific treatments. This includes lifelong ventilator support in cases of a permanent vegetative state or when doctors determine there is no reasonable hope of recovery. The directive can also outline preferences for pain management and palliative care.
Nominating a Decision-Maker
A powerful feature of the AMD is the ability to appoint Designated Healthcare Representatives (DHRs). You can nominate trusted individuals—often a guardian or close relative—to make medical decisions on your behalf if you cannot. It is important to note that your DHR does not need to be the same person named as the executor of your traditional will.
How to Create a Valid Advance Medical Directive
The process for making an AMD is straightforward but requires careful attention to formalities to ensure it is legally binding.
- Draft Your Wishes: Clearly write down your specific instructions regarding medical treatment and end-of-life care.
- Nominate Your DHR: Specify the full name of your chosen Designated Healthcare Representative.
- Sign and Attest: You must sign the document yourself. It then requires attestation by two independent witnesses. These witnesses should preferably not be your DHR, your family doctor, or a close friend or family member to avoid conflicts of interest. Finally, the document must be countersigned by a notary public or a Gazetted Officer.
Sharing and Safeguarding Your Directive
Once executed, you should share copies of your AMD with key people. The guidelines suggest providing a copy for custody with an officer nominated by the local government authority, such as a municipality or panchayat. However, experts note this official custody procedure is not yet uniformly operational nationwide.
Therefore, it becomes extremely prudent to take additional steps. Share a copy with your family doctor and your immediate family members. Discuss your wishes with them openly. Taking them into your confidence ensures everyone understands your desires and can act accordingly without confusion or conflict during a stressful time.
Keeping Your Directive Current
An Advance Medical Directive is not set in stone. Life circumstances and personal views can change. Legal professionals strongly recommend revisiting your AMD every few years. You should review it to see if it requires updates or if you have changed your mind about any instructions.
The great flexibility of an AMD is that you can revise it or withdraw it completely at any time. You can do this as long as you are of sound mind and have the capacity to make such decisions. This ensures the document always reflects your current wishes.
This guidance comes from legal experts Shaishavi Kadakia, a partner, and Radhika Parthasarathy, a senior associate, at the law firm Cyril Amarchand Mangaldas in Mumbai. Planning for healthcare decisions is a profound act of consideration, providing clarity and peace of mind for both yourself and your loved ones.
