GeriQBank · Paper IV · Q1
Living Will (Advance Medical Directive) — the procedure to write one in India and how it is executed
- Chapter
- Bioethics & Medico-Legal Geriatric Medicine
- Years asked
- Not recorded in the source
- Frequency
- Set 1× in Paper IV (2009–2025)
As set in the university paper
What is a living will? What is the procedure to write a living will in India and how is it executed?
Paper IV · Ethics, Law, Palliative & End-of-Life Care, Pain and Communication · asked ×1 · 7-mark note · see in paper list
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in India and how it is executed.
Source: Essentials of Clinical Geriatrics, 7th ed., Ch. 17 — Ethical Issues in the Care of Older Persons (advance care planning, advance directives, living will, proxy directive); Pathy’s 6th ed. — advance directives in palliative and end-of-life care. India-specific procedure from Common Cause (A Registered Society) v. Union of India, (2018) 5 SCC 1, as modified by the Supreme Court order dated 24 January 2023.
A. Concept and Definitions
An advance directive (AD) is a legal document by which a person states what treatment they want if they later become unable to express their wishes.
A living will is one type of AD. It states care preferences specifically for a terminal state at the end of life.
The living will covers a limited set of treatments — CPR, intubation, artificial nutrition and hydration, dialysis and intravenous therapy.
Its main limitation is that it addresses only defined situations (terminal illness, vegetative state) and cannot anticipate grey areas, such as whether an antibiotic is life-support or comfort care.
The other form of AD is the proxy directive (durable power of attorney for health care), which appoints a person to decide. In geriatrics a combined instructional plus proxy directive is the most useful.
Advance care planning is the process of eliciting values and preferences; the living will is only the document that results. It should be discussed in stable health, not during an acute admission.
B. Legal Basis in India
In Common Cause (2018) a five-judge Constitution Bench held that the right to die with dignity is a fundamental right under Article 21, and gave legal recognition to living wills and to withdrawal of life support.
The 2018 procedure proved unworkable (magistrate countersignature, boards requiring 20 years’ experience, District Collector’s involvement), so uptake was negligible.
On an application by the Indian Society of Critical Care Medicine, the Supreme Court simplified the procedure on 24 January 2023. This order is the operative law today.
C. Procedure to WRITE a Living Will (2023 Order)
Who may execute: any adult of sound mind, capable of communicating and of understanding the consequences, acting voluntarily and without coercion or inducement.
Form: it must be in writing and must state in unambiguous terms the circumstances in which treatment may be withheld or withdrawn.
It must name one or more guardians or close relatives who will give consent for withdrawal when the executor loses capacity (the 2023 order permits more than one nominee).
Signing: the executor signs in the presence of two attesting witnesses, preferably independent.
Attestation: the document must be attested before a Notary or a Gazetted Officer. The requirement of countersignature by a Judicial Magistrate First Class (JMFC) has been removed.
The witnesses and the notary/gazetted officer must record their satisfaction that it was executed voluntarily and with full understanding.
Distribution of copies: to the nominated guardian(s), to the family physician, and to family members.
Registration: a copy must be handed to the custodian — a competent official nominated by the local government (municipal corporation, municipality or panchayat), who maintains the registry.
The executor may also incorporate the directive into their digital health records, which greatly improves retrievability in an emergency.
Revocation: the living will may be revoked or revised in writing at any time while the person retains capacity; revised copies must go to all the same recipients.
D. How the Living Will is EXECUTED (Given Effect)
Trigger conditions: the executor is terminally ill, on prolonged treatment, with no hope of recovery or cure, and has lost decision-making capacity.
The treating physician verifies authenticity of the directive — from the digital health records if available, otherwise from the custodian.
The hospital constitutes a Primary Medical Board (PMB): the treating physician plus two subject experts, each with ≥5 years’ post-qualification experience; opinion within 48 hours.
If the PMB agrees, the hospital constitutes a Secondary Medical Board (SMB): a different set of clinicians (≥5 years’ experience), including one nominated by the district Chief Medical Officer; also within 48 hours.
When both boards concur, the hospital conveys (informs, not seeks approval from) the jurisdictional JMFC along with the directive or surrogate consent, and implementation may proceed.
If there is no living will: the same two-board process applies, with written informed consent of the next of kin / next friend / guardian acting as surrogate.
In case of non-concurrence or refusal, the nominee, family member, treating doctor or hospital may move the High Court under Article 226; the Chief Justice constitutes a Division Bench, which may appoint an independent three-doctor committee.
Key distinction: withholding/withdrawing life-sustaining treatment is lawful; active euthanasia remains illegal and punishable in India.
E. Current Practice Update
Textbook position (Essentials 7e / Pathy’s
Current Indian position (2023–2026)
6e)
ADs governed by statute — Patient Self- India has no statute; the operative law is Supreme Court guidelines under Article Determination Act 1991 and state laws 142 (Common Cause 2018, modified 2023)
Living will “witnessed, better notarised”; verbal ADs Only a written AMD attested before two witnesses + notary/gazetted officer is valid in some states valid; verbal directives are not recognised Document kept by patient, proxy or institution Additional mandatory deposit with a local-government custodian; optional entry into digital health records Futility decided by treating clinician ± ethics Decided by two statutory medical boards (PMB and SMB) with 48-hour committee timelines and JMFC intimation POLST/MOLST as portable medical orders No Indian equivalent; retrieval depends on custodian registries and state digital portals Artificial nutrition/hydration listed among refusable Judicially settled — Harish Rana (2026) held CANH is medical treatment and may treatments be withdrawn A single proxy or agent named The 2023 order permits multiple guardians / close relatives as surrogates Directive executed abroad generally portable across A living will validly executed overseas is not legally valid in India if it does not states follow the SC procedure Latest Updates (2023–Present)
Supreme Court order, 24 January 2023 (Common Cause, MA 1699/2019 in WP(C) 215/2005): removed JMFC countersignature and District Collector involvement, allowed notary/gazetted officer attestation, permitted multiple nominees, fixed 48-hour timelines for both boards, reduced board experience to 5 years, and made the JMFC’s role notification rather than approval.
MoHFW/DGHS Draft Guidelines for Withdrawal of Life Support in Terminally Ill Patients (2024): defined terminal illness as an irreversible/incurable condition with inevitable death; listed qualifying situations including brainstem death and severe traumatic brain injury with no recovery beyond 72 hours; gave prescribed formats for surrogate consent and PMB/SMB reports. The IMA objected and the guidelines are not yet notified as final.
Karnataka Government Orders, January–February 2025: first state to fully operationalise the directives — clinicians already empanelled for brain-death certification under THOTA 1994 (amended 2011) are deemed nominated to the SMB; AMD custodians are Joint Commissioners of BBMP zones (urban) and Taluk Panchayat Executive Officers (rural).
Goa (2024): first state to operationalise AMD registration, with a High Court judge executing the first living will before a gazetted officer.
Maharashtra (2024–2026): BMC ward medical officers designated custodians after PIL in the Bombay High Court; a digital portal (MahaULB) now allows citizens to upload directives, with municipal commissioners as custodians.
Indian Journal of Medical Research, 2026 (Vallath et al.): a 10-step institutional implementation pathway for withholding/withdrawing life-sustaining treatment with report templates; documented that a US-executed living will was not legally valid in India, so the no-AMD pathway had to be used.
Indian Journal of Critical Care Medicine, 2025 (Damani et al.): a 12-step advance care planning pathway adapted to Indian practice.
Harish Rana v. Union of India, 2026 SCC OnLine SC 358 / 2026 INSC 222 (11 March 2026) — the landmark update:
First case in which the Common Cause guidelines were applied in full measure by the Supreme Court, in a man in persistent vegetative state for 13 years.
Held that clinically assisted nutrition and hydration (CANH) is medical treatment, not basic care, and may be withdrawn — including when given at home.
Laid down the “best interest” test: a balance-sheet exercise weighing benefit against burden, indignity and futility, incorporating substituted judgment, with a rebuttable presumption in favour of preserving life.
Replaced “passive euthanasia” with “withholding/withdrawing of medical treatment”; “euthanasia” now means active euthanasia only, which remains impermissible.
Recognised a 30-day reconsideration (cooling-off) period, waivable where all stakeholders are unanimous.
Directed all High Courts to instruct JMFCs to receive hospital intimations, and the Union and States to ensure every district CMO maintains a standing panel for SMB nomination.
Clarified the pathway for home-care patients and urged Parliament to enact comprehensive end-of-life care legislation.
Examiner’s Tip
Skeleton: Definition (AD vs living will vs proxy) → Article 21 and Common Cause 2018 → why the 2023 modification was needed → execution: adult of sound mind, written, unambiguous, nominee(s), two witnesses, notary/gazetted officer, copies to nominee + family physician + custodian, optional DHR, revocable → effectuation: trigger → verification → PMB (48 h) → SMB with CMO nominee (48 h) → JMFC intimation → implement → conflict pathway via High Court under Article 226 → Harish Rana 2026 → active euthanasia remains illegal. “After the Supreme Court’s order of 24 January 2023, a valid living will in India requires only that it be in writing, signed before two attesting witnesses and attested by a notary or gazetted officer, with copies to the nominated guardian, the family physician and the local-government custodian — the earlier requirement of countersignature by a Judicial Magistrate First Class stands removed.”
“Execution now follows a two-board pathway — a Primary Medical Board and an independent Secondary Medical Board containing a CMO nominee, each reporting within 48 hours — after which the hospital merely informs the jurisdictional JMFC; and since Harish Rana (2026), clinically assisted nutrition and hydration is recognised as medical treatment that may lawfully be withdrawn in the patient’s best interests.”
Extra Points to Remember — recurring topic
Four numbers to carry into the hall: 2 witnesses · 2 medical boards · 5 years’ experience · 48 hours per board. Add 30 days for the Harish Rana reconsideration period.
Three landmarks in sequence: Gian Kaur 1996 (no right to die) → Aruna Shanbaug 2011 (passive euthanasia with High Court approval) → Common Cause 2018 (Article 21 right to die with dignity, living wills) → modified 2023 → Harish Rana 2026 (first application).
The commonest error in answers: writing that the JMFC must approve. Since 2023 the JMFC is only informed. Distinguish clearly between the living will pathway (directive verified → boards) and the no-directive pathway (surrogate written consent → the same boards). Both use PMB and SMB.
Why uptake is still poor in India: low public awareness, custodians not notified in most states, no national registry, and no statutory backing — hence the Supreme Court’s call to Parliament.
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References
- PAPERS-2-3-4_COMBINED.pdf — page 1217
- GeriQBank source PDF — p. 1217
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