I am a 73-year-old Hindu man preparing my will. I live with my wife and two daughters. While I am currently healthy, I want to plan for future medical situations. I wish to state that if I become critically ill and require lifelong ventilator or similar life-support, my family should refuse such treatment and allow me to die peacefully. Can this preference be included in my will?
—Name withheld on request
You should not include such a wish in your will as your will would only come into effect upon your demise (and not when you are alive and unwell). Instead, you may consider making a legal document called an advance medical directive (AMD) (also referred to as ‘living will’) in which you may communicate your wishes regarding your medical care in case you become critically ill. The Supreme Court of India has recognised the validity of AMDs and laid down guidelines for their execution and enforcement.
An AMD may be made by a person with decision-making capacity, stating their wishes regarding medical treatment or for withdrawal of treatment when they become incapacitated. Your AMD can state your desire that treatment like ventilator support be withheld if you are in a permanently vegetative state or there is no hope for recovery, your preferences for pain management, etc. You may also nominate designated healthcare representatives (DHRs) to take decisions on your behalf for your medical treatment, if needed.
The process
To make a valid AMD, you must clearly write down your treatment wishes and specify the name of the DHR (who may be a guardian or close relative and need not be the same individuals as the executors of your Will). You must sign this document, and have it attested by two witnesses who are preferably independent (for instance, not your DHR, family doctor, close friend or family member) and by a notary or Gazetted Officer.
A copy of the AMD should be shared for custody with an officer nominated by the relevant local government / authority (panchayat, municipality, municipal corporation), although do note that the procedure for custody is not currently operational uniformly across India. It would be prudent to also share a copy of your AMD with your doctor and your family in advance and take them into confidence.
It is also recommended that you revisit the AMD every few years, in case it needs to be updated, or you change your mind. Your AMD can also be revised or withdrawn by you at any time, so long as you are of sound mind.
Shaishavi Kadakia is a partner and Radhika Parthasarathy is a senior associate at Cyril Amarchand Mangaldas, Mumbai.
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