Understanding a Living Will

Posted by KSK . July 12, 2019 -
Legal


A living will, as per my initial understanding  wasn’t about the will people write to leave behind  property to nominees at their death. A good two hour interactive session by Shiv Kumar, a Senior Advocate with 48 years of active practice at the Karnataka High Court helped a 70 plus audience of Senior citizens understand the nuisances of it while clarifying the misconception around it.

                                                

A living will, also called a directive to physicians or advance directive, is a document that lets people state their wishes for end-of-life medical care, in case they become unable to communicate their decisions. It’s a written statement detailing a person’s desires regarding future medical treatment in circumstances in which they are no longer able to express informed consent. It gives you the right to die with dignity which is now considered equivalent to the fundamental right of living with dignity.

In European countries, the provision of a Living Will is provided in the legislation which is not the case in India. However on March 2018, the Supreme Court of India, in a landmark judgement, recognized the right of a terminally ill person to execute an AMD ( Advance Medical Directive) , an alternative terminology to living will. The AMD gives the authority of withdrawal or withholding medical treatment under the governance of guidelines as prescribed by the Supreme Court and is as effective as a Living will.  

A quick summary of a detailed discussion by Shivkumar on the supreme court ruling on AMD …

Who can execute: A sound & healthy adult who can comprehend the consequences of executing such a document

What should be the content: Absolutely clear written instructions on circumstances AMD to be executed, option of executor to revoke instructions/authority any time  and specify guardian who could execute in case of the executor becoming incapable

How to record & preserve: AMD to be signed by the executor in the presence of two independent attesting witnesses, countersigned by jurisdictional Judicial magistrate of first class (JFMC) designated by the concerned District judge. JFMC preserves one copy in his office and forwards one copy to the registry of District Judge for record.

When & by whom can AMD be given effect: When the executor becomes terminally ill or undergoes prolonged medical treatment with no sign of recovery the specified guardian/family members update doctors on AMD. JFMC of the respective jurisdiction ascertains the genuineness of AMD.

What if permission is refused by the medical board: The family members of the executor will then have to approach high court by the way of writ petition under article 226 of the constitution.

For more details on Living will & AMD,  send in your query to Kiran.ks@samsaraliving.com

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KSK July 12, 2019

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