The following article was first published in the Mint newspaper on 29th March, 2023. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.
What is a living will? Is it any different from a regular will?
—Name withheld on request
A living will is a written legal document that individuals can execute during their lifetime, whereby they can specify whether they shall or shall not be given medical treatment in the future if they become terminally ill. It does not deal with the disposal of any property, either during one’s lifetime or after death. On the other hand, a last will and testament is a formal, legal declaration of the intention of individuals with respect to their property which they desire to be carried into effect after their death—strict formalities apply to its execution and implementation.
A living will comes into effect while individuals are in a vegetative state and cannot express their wishes regarding their preference of medical treatment. Effectively, a living will allows individuals to exercise their right to die with dignity in circumstances where such individual becomes incapable of taking a decision.
Hence, it is important to keep the living will separate and distinct from a normal will.
I am a 38-year old married man with 2 children. Given an incident of terminal illness in my family, I want to execute a living will. Is there a particular format for a living will and what should be included in that?
—Name withheld on request
There is no specified format of a living will. In addition to your basic details as an executor/signatory, your living will should clearly specify the circumstances under which medical treatment shall be continued or be withdrawn to avoid any ambiguity, in case of terminal illness.
Your living will needs to include the details of your immediate family member who will be authorized to give consent to refuse or withdraw medical treatment on your behalf in case you are incapable of taking a decision at the relevant time. Do note that such living will would have to be executed in the presence of two attesting witnesses, and attested by a notary or a gazetted officer.
To summarize, a living will has to include all the necessary details and specific instructions in a clear and unambiguous manner. You may also consult your lawyer in preparing a valid living will.