Here's an article published in Lawyersclubindia.
Regards. C H Mahadevan
Dad collapsed at lunch. We were at home and rushed him to hospital. One of Bombay’s best doctors, son of mom’s friend, immediately examined dad, on the lobby floor. ‘Khotto sikko chey,’ he said. A ‘counterfeit coin’. He gave us two days, to make ‘preparations’. Did dad have a Will? No. Was he going to make one? No. Frankly, his love for us was worth more than the billions he could not give. We simply did not care.
Should our family have been worried? A definite ‘Yes’. A big ‘YES’. We have had a lot of seminars at Moneylife, dealing with Wills. The one thing we learn from them is that we cannot foresee everything. We have to do the best we can.
Dad, being dad, came home a month later. But we knew better. A wooden nickel. Did we do anything then? No. A month later, we were back in hospital. This time, we knew for sure. The doctor asked us to forego all artificial resuscitation. It may then last for years, he explained. Mom agreed. No suffering.
We kept vigil. Day and night. One night, while I was sleeping on the bench in the corridor, a junior doctor, uninformed, started resuscitation. By then, dad was in a coma. When I awoke, I panicked. Dad was entombed in equipment, cylinders, pipes and meters. I called our doctor. We had agreed on letting him pass silently into the night.
You be the judge. What should the doctor have done? He refused to withdraw the tubes. Tantamount to murder, he explained. No matter what, it could not be done.
This is where a ‘Living Will’ comes handy. A bit of a misnomer, the Will is not alive. It is a set of instructions drawn up, in case of an emergency, usually a medical situation. Means and methods to be set in motion when the ‘testator’ is not able to care for himself. While a Will ‘speaks from the grave’, a Living Will speaks when the deponent, while still alive, is unable to speak for himself.
A Living Will must be carefully drawn up. Think of everything possible. Where is the money to come from? How much is to be spent? Who will have access to it and how is it to be allocated? What of Mediclaim? Will the insurer play ball? Is your doctor in the know and has he been consulted on the medical costs and possibilities of care? Most importantly, does the Will specify, if so desired, that artificial means must not be used under any circumstance? Have you indemnified the person whom you have entrusted to ‘execute’ the Living Will? He could face a lot of flak just by following your instructions. Is there more than one agent to do your bidding? Always wiser to appoint a second line of defence, an arm’s length person. A close relative may be involved in the same accident as the deponent.
Then there are religious rituals that one may need, when close to death. These need be detailed, priests named. If one has donated one’s organs, someone needs to inform the hospital or agency when the end arrives. Eyes, especially, have to be recovered immediately, to gift their sight to others.
There is always the possibility that the hospital, fearing legal reprisals, may not follow your instructions. Make sure that the matter is cleared beforehand with the hospital and its lawyers. Maybe leave a copy with the doctors or the hospital management.
Above all, consult your lawyer, especially one who understands the special and specific implications. Have you signed the document? The law is silent on the need for witnesses, but it is best to get the attestation done. Take due care. Dad was put off the ventilator when he stabilised. He passed away one night, two months later, peacefully in his sleep.
For those who may want to prepare a Living Will, let us pray that it is never put to use. Also remember, it has no legal sanctity as yet, but it acts as a guide for your loved ones and your doctors on what to do, if you are no longer capable of spelling it out yourself.