The Living Will

What is a living Will?

Most people in India are not aware of the concept of a living Will. A living Will is not to be confused with “Will” in an ordinary sense. A living Will neither disposes of a property nor is it operational after death. It has none of the features that a testamentary document possesses.

A living Will is a declaration that states the person who makes the Will desires to die a natural death. He does not wish to use extraordinary medical treatment or artificial nutrition or hydration, which is used to keep a person alive if there is no reasonable hope of recovery. A living Will permits the Doctor to withhold or withdraw life support systems under certain conditions.

The Age Concern’s Institute of Gerontology and the Center of Medical Law and Ethics joint report stated that the term ‘The Living Will’ refers to a document in which a person, while still competent, requests and directs that specific measures, which may be variously specified, should be adopted if and when he becomes incapable of taking responsibility for their own health care, i.e., by consenting to or refusing treatment. The measures usually relate to refusing certain forms of treatment aimed at preserving the person’s life?.

A Living Will is a document made in the present but intended to apply sometime in the future. It provides detailed information about future health care and gives the required directions to the people concerned. It is made while the person is mentally competent and has full consent.

When we talk about a living Will, we have to keep in mind that the person making the Will is fully aware of the facts stated in the Will. It is a legal document, and the person making it should be at least 18 years of age.

The role of the family:

The family plays a very important role in Indian Society. Well, the issue that will arise here is that the family might not approve of a living Will and would not accept such a document. The purpose of law is to regulate human activities in a society. Not getting the approval of the family would lead to a lot of grievances and unhappiness.

The Role of Medical Practitioners:

Medical practitioners play an essential role in the living Will. They have to be instructed carefully by the individual what course of action should be taken if there is any medical mishap. The patient should inform the Doctor of his preferences in case he is in a better condition. The Doctor should be informed in advance about the Patent’s wishes and the Living Will so that the Patient can be treated in accordance with his wishes.

In the United Kingdom, the National Health Services Act 1946 provides health services to the people. It includes a scheme of social insurance, which gives medical benefits to many people. In India, there is no such legislation which helps the pooper people due to the large population we have. Medical legislation and help should be given to the poorer people as we have a large population and do not have enough resources to fulfill their needs.

ARE THERE ANY BINDING LAWS/ PROVISIONS ABOUT LIVING WILL

Law has settled the fact that an adult may refuse treatment. It has also been made clear that if a patient has been treated against his wishes, such treatment is tortuous. [When we say tortuous, we simply mean it is a civil wrong]. This can be justified by saying that if a patient has made a living Will, he or she is entitled to receive what he or she has stated in the Living Will, and the Medical Practitioner and his or her family should respect his or her wishes.

Many people would consider a living Will as an attempt to commit suicide. ‘Suicide’ means self-killing. To commit suicide is killing oneself voluntarily, the purpose is to destroy ones own life, being conscious of the probable consequences and having at the time the frame of mind to kill oneself. If the act of suicide fails to accomplish its purpose, it constitutes an attempt to commit suicide, which is an offense. There should not be any confusion regarding living Will and Euthanasia. There are a lot of significant legal and ethical differences between the two.

A patient cannot refuse primary care like immediate first aid treatment concerning injuries he/she has suffered. This simply states that only people who are entirely in their senses and can understand right and wrong have the right to choose the type of treatment they deserve, which is given to them. In a recent case, the law referred to as Adult: Refusal of Medical Treatment indicated that the person must be mentally competent and should be fully aware of the consequences.

The crucial legal aspect of a living Will is sui juris. That means “of his own rights.” A person who can validly contract and bind himself by legal obligation, uncontrolled by any other person, is said to be sui juris. In other words, a person not subject to any incapacity, such as non-age or insanity, possessing full social and civil rights, not under any legal disability or the power of another guardianship, is said to be sui juris.

People are now aware of their rights, and they want to make provisions to ensure their dignity in case they become incapable of making any decisions due to unconsciousness, coma, or any mental incapacity.

We would like to discuss at length whether provisions made by these individuals now are binding on health professionals, caregivers, or members of the family at a later date.

In the United States of America, living Will was first perceived as a form of Euthanasia. Living Will was not acceptable by several Catholics and Christians, and it led to the fact that people could, without any reasonable cause, refuse medication. On the other hand, people felt that the use of technology resulted in situations where people were not afraid to die but were fearful of the long process of dying. As we are well aware, medicine and technology have progressed immensely; thus, there is a cure for almost anything.

Louis Kutner referred to the term “living Will” as a comparison between a legal trust over property and a legal trust over one’s own body. The Voluntary Euthanasia Society introduced living Wills in the United Kingdom during the 1980s. The British Medical Association and the Royal College of Nursing recognize Living Wills. In England and Wales, there is no statute currently governing Living Wills.

The Law Commission in the United Kingdom recommended

1.	Firstly, there should be a statutory framework to clarify the scope and legal effect of an anticipatory decision. The law Commission confirmed the principle, established in the case of Adult: Refusal of Medical Treatment, that a clearly established anticipatory decision should be effective as a contemporaneous decision of the patient.
2.	The Law Commission also recommended that an anticipatory decision made in the form of a Living Will be valid, in writing, signed by the maker, and witnessed by one person. It also stated that there couldn’t be any clause refusing ‘basic care.’
3.	The most important aspect, which the Law Commission emphasized, was that a Living Will could be revoked orally or in writing at any time while the maker still retains his capacity.

There are several ethical dilemmas for the health professional involved or the other caretakers. Without judicial decisions on the effectiveness of living Wills, it would be premature to state that a living Will is binding.

As of now, there is no such legislation that governs a person’s right to make a living Will. If it is made, does it have the same binding as a legal Will? Many arguments have stated that some legislation should govern the Living Will. There is great difficulty in drafting legislation that clearly defines the circumstances in which a living Will would have binding force.

In our country, we believe in long-standing customs and traditions. The sentiments and emotions of the Indians have to be taken into account rather than any other issue. Would a son not have any rights in case his father has an accident if the father has prepared a living Will?

When we talk about a living Will, we have to consider something essential for the older generation: something that protects them from being dumped by their children and from becoming homeless. A living Will only enables the person to make choices prior to the event.

A legal document should enable and safeguard the older generation from misery and poverty when they are retired and lonely. Medical facilities should be provided to them, and insurance should be given so that they are looked after in a decent fashion.

Though ‘Living Wills’ is a good concept, it has not been introduced to the people of India. The senior generation of our country would benefit greatly from using this document, as it would assure them that they would die with dignity and in accordance with their own wishes. There is no legislation concerning Living Will in India. Thus a declaration or a legal document should be made which is in accordance to the sentiments and emotions of the Indian people.

Glossary:

1.	Parties to the Will
2.	Testator or testatrix: the person who has the power to make a Will or testament
3.	Legatee: the person to whom the legacy is bequeathed.
4.	Administrator: a person appointed by competent authority to administer the estate of a deceased person when there is no executor.
5.	Executor: a person appointed to carry the Will into effect after the testator’s death and dispose of the state according to its tenor. He is thereby termed as the legal representative.
6.	Two witnesses: two persons indifferent to the will who sign under the oath stating that the contents are true and duly executed.
7.	Person capable of making Wills: According to section 59 of the Indian Succession Act, any person of sound mind who has reached the age of majority can make a Will. A person who is ordinarily insane may make a Will while he is sane.
8.	Wordings of the Will: according to section 74 of the said act, no technical words or terms of art should be used in a Will, indeed it should be simple, clear unambiguous so that intension of the testator are known.

Format of Indian Will

Introduction: –

As we are already aware, a will is a legal statement written by an individual to facilitate the distribution of his property after his death. This enables the person to bequeath his property, wealth, and belongings to the people he or she cares about and prevents legal battles.

A person making the Will is called a ‘Testator.’ It is always advisable to consult an advocate before making a Will. The advocate whom you refer should be someone you trust and have confidence in.

Essential features: –

1.	It should be made when the testator is of sound mind and competent. It should be made young so people do not exploit the individual.
2.	A Will should be clear and not ambitious. It should be neatly drafted so that it is easy to understand. Sometimes relatives and others may try to distort the interpretation of the Will for their own benefit. It is always better to take the advise of a trusted advocate.
3.	A Will must always be dated. If more than one Will is made, the one with the latest date Will nullify all other Wills. In fact, it would be better to make a statement nullifying all other Wills.
4.	A Will can be hand-written or typed out. No stamp paper is necessary.
5.	An ‘executor’ of the Will should be appointed and entrusted with the responsibility of ensuring that all the assets are distributed according to the provisions of the Will. The testator (person making the Will) should take the prior consent of the person whom he or she wishes to name as the Executor.
6.	The Testator should sign the Will in the presence of at least 2 witnesses. The witnesses will also sign the Will. It would be better if one of the Witnesses is a medical practitioner, but this is not essential. The practitioner should certify that the Testator is of sound mind (especially if the Testator is of an advanced age), and he or she should also note his or her registration number and degree (educational qualification). A Witness should not be a beneficiary of the Will. A witness should also not be an Executor of the Will.
7.	Each page of the Will should be serially numbered and signed by the Testator and the Witness to prevent substitution, replacement, or insertion of a page or pages by persons with fraudulent intentions. At the end of the Will, the testator can indicate the local number of pages. Corrections, if any, should be countersigned.
8.	The Will may be kept in a safe place like a bank vault. The Executor and the beneficiaries should be informed where the Will is kept. It is advisable to keep a signed copy of the Will with a trusted advocate. Duplicate copies of the Will may be made, signed by the testator and the witness, and kept separate so that if one is misplaced, the other may be used.