What is a living will, why is it important, how to make one & how it can help our loved ones

Let us discuss what is a living will, why it is important, how to make one and how it can help our loved ones. On March 9th, 2018, the Supreme court of India allowed passive euthanasia and recognised a directive of a terminally ill patient to withdraw life support. The court also put into place guidelines until this becomes a formal law. I discuss what is a living will, its importance and how to make a living will. You can download a sample below.

Before we proceed, this is the supreme court judgement on passive euthanasia

What is a living will?

A living will, also known as an advance directive is a set of instructions to the doctors treating us and our relatives in the event we become so ill that recovery is not possible and all medical treatment can do is to prolong our life. A living will has nothing to do with the usual will employed to distributed one’s wealth and estate after demise.

Note: The executor of a living will is the person who writes the will! If he/she is not a position to execute the will, an appointed surrogate will do so.

In such an event, the supreme court has said that the “inherent right to die with dignity” is an intrinsic part of our constitution.

Then using a living will we instruct doctors about what method of treatments are acceptable to us and when treatment can be stopped to allow us to die a natural death. This is known as passive euthanasia.

This will come into effect only if

the illness of the patient is incurable and there is no hope of his being cured

living will: Why it is important and how to make one

Why is it important?

By the time, a living will can be invoked, we would have probably lost consciousness and be pretty much a vegetable. So although it would be nice to die with “dignity”, at that time we would not be in a position to “discern”.

A living will is not for us. It is for the benefit of our loved ones.  We can give them a clear indication such as:

“if I slip into a coma, remove ventilators, stop feeding via tubes and turn out any and all devices which assist in life support”

Usually, when a loved one is in a coma, we would cling on to hope and/or feel guilty if we did not do everything possible to treat them. Hospitals will be happy to oblige if we have the money to spend. What is the point of doing this when all we are doing is delaying the inevitable?

Would you agree that if you are the one lying in bed in that state (where recovery is not possible) you would prefer to die a quick death and not just be biologically alive?

If your answer is yes, then you need to write down a living will.  This way, you remove guilt from the minds of your relatives. You save them time and more importantly money – perhaps your own, which can be used in better ways eg for charity.

The basis of the living will

The following extracts from the court judgement clarify the need for a living will:

inherent right to die with dignity which is an inextricable facet of Article 21 of the Constitution

it is set forth that right to die sans pain and suffering is fundamental to one‘s bodily autonomy and such integrity does not remotely accept any effort that puts the individual on life support without any ray of hope and on the contrary, the whole regime of treatment continues in spite of all being aware that it is a Sisyphean* endeavour, an effort to light a bulb without the filament or to expect a situation to be in an apple pie order when it is actually in a state of chaos

* A task that cannot be completed, from Greek mythology

This essentially forces the hand of the government to bring about legislation in this regard. Until such a time, the court has laid down the procedure to execute the advanced directive.

This will help hospitals and doctors a way to handle such situations under the letter of the law without any mental conflict.

Who can write a living will?

As should be obvious, any major who is of sound mind can issue an advanced directive or a document titled My Living Will and Attorney Authorisation. The directives should be clear and should not have been made under any kind of pressure. A sample living will is given below. I have tried to comply with the language required by the Supreme court.

I request doctors, lawyers and chartered professionals to critique this and suggest changes.

Sample format of a living will

My Living Will and Attorney Authorisation

I, TTTT TTTT voluntarily put forth the following as my living will or advanced directive on  ___________ (date). I am of sound mind while writing this and fully understand the consequences and implications of the instructions put forth in this document for execution.

I the executor of this directive, appoint YYYY YYY as my surrogate to carry out the instructions of this living will if I am not in a position to do so myself. In the absence or demise of YYY YYYY, ZZZ ZZZ shall be the surrogate.

I the executor of this directive reserve the right to revoke or modify any and all of the instructions given below. However, in the absence of a revocation document or a modification document, the present document should be considered as “final” and binding upon the executor and surrogate. Any living will written before the date of the present document is null and void and this is the effective final will.

This document is prepared voluntarily by me without coercion or compulsion from anyone else. With this document – prepared with informed consent – I stake my constitutional right to die with dignity. I request all concerned doctors, hospital administrative staff (if relevant) and all government officials in charge of approving the execution of this document to kindly do the needful as soon as possible.

As and when the situation demands it, the executor or the surrogate shall seek the opinion of the treating doctor if: “further medical treatment given has only the effect of delaying the process of death causing me pain, anguish suffering and put me in a state of indignity”.

If the answer to the above question is “yes, I the executor or the appointed surrogate shall initiate the execution of this advanced directive without any delay.  This directive will come into effect when I am terminally ill with no hope of recovery and cure of the ailment and treatment merely prolongs life.

1: Do Not Resuscitate (DNR): In the event of respiratory or cardiac arrest directly or indirectly due to my prolonged illness, I do not wish to be resuscitated.

2: Switch off life support and stop life-sustaining treatment: Any and all life supporting machines or mechanisms such as the following should be switched off

  • Kidney dialysis machine
  • Oxygen concentrator
  • Respirator
  • Ventilator
  • Pressure breathing therapy
  • Infusion feeding pump
  • Peritoneal dialysis machine
  • Anesthesia Machine
  • Apheresis System
  • Balloon Pump, Intra-Aortic (IABP)
  • Defibrillator
  • Extracorporeal Membrane Oxygenation (ECMO)
  • Heart-Lung Bypass Machine (Pump, Extracorporeal Perfusion)
  • Heart-Lung Bypass Heat Exchanger
  • Iron lung
  • Pacemaker,
  • Cardiac External Pump, Blood, Extraluminal (Roller Pump)
  • Intermittent positive pressure breathing (IPPB) machines
  • Suction machine
  • antibiotics,
  • transfusions
  • nutrition and hydration

All life-sustaining medication, treatment or therapies should be discontinued.

For the purpose of this directive, there will be no difference between withholding life support and withdrawing life support.

3: Any equipment, medication or treatment used to reduce pain, suffering and discomfort can be continued until the passive euthanasia procedure is completed.

4:  No experimental treatment or therapies should be attempted unless there is a proven record of their efficacy.

5: In the case of malignancies where chemotherapy or radiation dosages are unlikely to help in recovery, they should not be administered.

6: Organ donation: Any and all organs of my body that can be used in another person can be harvested. The remains can be used for medical research and/or training medical students.

Signed by

(1) TTT TTT (self, the executor)

(2)  Independent witness (1)

(3)   Independent witness (2)

(4) jurisdictional Judicial Magistrate of First Class
(who shall preserve two copies, one in digital form and forward another copy to jurisdictional District Court and will also inform relatives if not present).

One copy will go to local municipality or corporation for preservation. Another copy to the family physician if any.

One copy to YYY YYY and one to ZZZ ZZZ (not required by law, but prepreferableThe individuals should be aware of what an advanced directive is and should be in a position to “get things done”.

Download this sample Living Will and Attorney Authorisation. Please consult a doctor and lawyer before finalising this.

How a living will be executed in India

Until legislation is in place, these are the guidelines offered by the supreme court. They are not exactly easy!

Step 1: When the executor of the living will becomes terminally ill with no hope of recovery, either he/she or the surrogate acting on their behalf must intimate the treating doctor about the existence of the advanced directive.

Step 2: The doctor request the copy from the judicial magistrate to verify the authenticity

Step 3: Doctor talks to the executor or surrogate and family and discussed all possible options and is satisfied that they understand the implications of following the advanced directive

Step 4: The doctor convenes a medical review board with members from the hospital with requisite experience (see page 176 of the judgement) for a preliminary review

Step 5: If the above review agrees that passive euthanasia is justified, the jurisdictional Collector has to be informed and the collector

shall then constitute a Medical Board comprising the Chief District Medical Officer as the Chairman and three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years

Step 6: If the board agrees, the jurisdictional Judicial Magistrate and family members are intimated.

Step 7: The Magistrate visits the patient, reviews all aspects once more and then gives the go ahead. Before this, the executor (not the surrogate) has the right to revoke the will.

If the second medical board does not agree, the family can go to court for resolution.

I know what you are thinking: the person might naturally die before all this gets done! I hope so too, but it might not pan out that way.

References:

1: List of life support equipment

2: Policy on foregoing life-sustaining or death-prolonging therapy

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4 thoughts on “What is a living will, why is it important, how to make one & how it can help our loved ones

  1. Too much to think of Professor, sometimes you scare us. Perhaps, one of your favorite laws is Murphy’s Law.

  2. Where do we find judicial magistrate? Is there record keeping register or something available with their office? I am wondering how living will be retrieved after several years of execution.

    1. Recording keeping registrar etc. should be notified soon. An advocate can help locate the judicial magistrate. They should have offices in local courts.

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