Living wills: advance medical directives

A living will, also called an advance medical directive, is a written document in which an adult, while still able to decide, sets out the circumstances in which medical treatment may be withheld or withdrawn if they later cannot decide for themselves. Since 2023 it is signed before two witnesses and attested before a notary or Gazetted Officer, and two medical boards formed by the hospital look at the case before it is acted on. It is not a will about property, and Waseeyat does not prepare one.

Where the rules come from

• The right to live with dignity includes smoothing the process of dying for a person who is terminally ill, or in a persistent vegetative state, with no hope of recovery. An adult who is able to decide may refuse a particular treatment, or all treatment, even at the risk of death. Where a patient has made a valid advance directive, free from reasonable doubt, saying they do not wish to be treated, it has to be given effect, within the conditions explained below (Common Cause v. Union of India, Supreme Court, 2018, para 195(viii) and (x)).
• The Court set out how a directive is made and used. It did so as its own directions, under Article 142 of the Constitution: they are not an Act of Parliament, and they stay in force until Parliament makes a law on the subject (Common Cause, 2018, paras 194 and 196).
• In January 2023, a bench of five judges changed those directions: how a directive is signed and attested, who keeps copies, who sits on the medical boards and what the magistrate does (Common Cause v. Union of India, Supreme Court, order of 2023).
• In 2026 the Supreme Court called the 2018 guidelines, as changed in 2023, "the governing law of the land" (Harish Rana v. Union of India, Supreme Court, 2026, para 98). It recorded that Parliament had still not made a law on the subject, and urged the Union Government to consider a comprehensive one (paras 279 to 291).
• These rules are not tied to any personal law, and they do not come from the Indian Succession Act (Common Cause, 2018).

A living will is not a will

• The Indian Succession Act defines a will as the legal declaration of a person's intention about their property, which they want carried out after their death (Indian Succession Act, 1925, section 2(h)).
• A living will is about medical treatment. It comes into play only during the person's life, when they are terminally ill, undergoing prolonged treatment with no hope of recovery or cure, and unable to make decisions (Common Cause, order of 2023, para 198.4.1).
• The Supreme Court's guidelines call the person who makes a directive its "executor". Here that word means the maker of the directive, not the executor of a will.

Who can make one (Common Cause, 2018, para 191(a))

Only an adult of sound and healthy state of mind can make a directive: someone able to communicate, and to relate to and understand its purpose and consequences. It must be made:

• voluntarily, without coercion, inducement or compulsion, and with full knowledge or information;
• with informed consent, free of any undue influence or constraint;
• in writing.

In plain words, the decision must be your own, made freely, knowing what it means. The 2023 order did not change these rules.

What it must say (Common Cause, 2018, para 191(b), as changed in 2023)

A directive must:

• set out, in specific, clear and unambiguous terms, the circumstances in which treatment may be withheld or withdrawn;
• say that you may revoke (cancel) it at any time;
• say that you have understood its consequences;
• name a guardian or close relative who will give consent if you become unable to decide. Since 2023 you may name more than one person, and no minimum number is set (Common Cause, order of 2023, para 198.2.5).

If there is more than one valid directive and none has been revoked, the one signed most recently counts.

How it is made since 2023 (Common Cause, order of 2023, paras 198.3.1 to 198.3.6)

1. You sign it in the presence of two attesting witnesses, preferably independent ones, and it is attested before a notary or a Gazetted Officer (para 198.3.1).
2. The two witnesses and the notary or Gazetted Officer record that they are satisfied you made it voluntarily, without coercion, inducement or compulsion, and with full understanding of the relevant information and its consequences (para 198.3.2).
3. You tell the person or people named in it, and your family doctor if you have one, and give each of them a copy (para 198.3.5).
4. A copy is handed to the competent officer of the local government, municipal corporation, municipality or panchayat. That body nominates an official as the custodian of the document, meaning the official who keeps it (para 198.3.6).
5. You may also choose to make the directive part of your digital health records, if you have any. This is optional (para 198.3.6).

What changed in 2023: a magistrate no longer countersigns the directive, and neither the magistrate nor the District Court keeps a copy (paras 198.3.1, 198.3.3, 198.3.4 and 198.3.7). The 2023 order does not say what happens to a directive made under the earlier procedure. If you made one before 2023, you may wish to ask a lawyer whether to make a fresh one; that is our suggestion, not a rule of law.

Who keeps a copy where you live

The Supreme Court's directions leave it to each local body to nominate its custodian, and they do not set up a registry, a fee or a form (Common Cause, order of 2023, para 198.3.6). So ask your municipal corporation, municipality or panchayat who its custodian is, how to hand over a copy, and whether there is a fee. This is our advice, not a rule of law.

Two official instruments we have read:

• Karnataka. A Health and Family Welfare Department circular of 30 January 2025 states that the Supreme Court's guidelines, as changed in 2023, govern advance medical directives and decisions to withhold or withdraw life-sustaining treatment. It was sent to, among others, Deputy Commissioners, District Health Officers, medical colleges, heads of municipal bodies and panchayats, and registered private medical establishments. A Government Order of the same date treats neurologists, neurosurgeons, surgeons, anaesthetists and intensivists who are approved to certify brain-stem death as registered medical practitioners nominated by the District Health Officer, who may serve on Secondary Medical Boards. Both came before the Supreme Court's 2026 judgment on Chief Medical Officers' panels, described below. The circular's own summary differs from the Supreme Court's text in places: for example, it says a directive should name at least two people, where the Supreme Court sets no minimum. Where the two differ, this note follows the Supreme Court's text.
• Nashik, Maharashtra. A notice of the Nashik Municipal Corporation records that its Commissioner's order No. 11 of 18 March 2024 named an Assistant Medical Officer of its Medical Health Department as the corporation's custodian of advance medical directives, in compliance with the Supreme Court's order of 2023.

We have not confirmed arrangements in other places from official texts, so this note does not describe them.

When a directive is used (Common Cause, order of 2023, para 198.4.1; Harish Rana, 2026)

• A directive comes into play when the person who made it is terminally ill, is undergoing prolonged treatment with no hope of recovery or cure, and cannot make decisions. The treating doctor first checks that it is genuine, against the patient's digital health records if there are any, or with the custodian (para 198.4.1).
• In Harish Rana (2026), the Supreme Court read the 2018 judgment to mean that, for a patient who cannot decide, a directive refusing treatment can be acted on only when all three of these are true: the patient has a terminal illness, is in a persistent vegetative state or has a like condition; the treatment has been prolonged; and the condition cannot be reversed. The Court said this applies even to a directive that names the situation outright; its example was "no treatment on a heart attack". It added that while a patient is able to decide, there is no need to look at a directive at all (Harish Rana v. Union of India, Supreme Court, 2026, paras 105, 107 and 108). Harish Rana himself had not made a directive, so these remarks were not needed to decide his case.
• A directive that is unclear or ambiguous is not given effect, and the guidelines for patients with no directive apply instead. A directive also does not apply if circumstances arise that its maker did not foresee and that would have affected their decision (Common Cause, 2018, para 191(f); unchanged in 2023).

The two medical boards (Common Cause, order of 2023, paras 198.4.3 to 198.4.6; Harish Rana, 2026)

• Primary Medical Board. The hospital forms it from the treating doctor and at least two experts in the relevant specialty, each with at least five years' experience. It visits the patient with the guardian or close relative present, and gives its preliminary opinion, preferably within 48 hours of the case being referred to it. The treating doctor informs the people named in the directive (paras 198.4.3 and 198.4.4).
• Secondary Medical Board. If the Primary Board certifies (formally confirms) that treatment may be withdrawn, the hospital immediately forms a second board: one registered medical practitioner nominated by the district's Chief Medical Officer, and at least two experts in the specialty, each with at least five years' experience, who were not on the Primary Board. Under the 2018 directions the district Collector formed this board; since 2023 the Collector has no role. The Secondary Board first finds out the patient's wishes or, if the patient cannot decide, obtains the consent of the people named in the directive. It gives its opinion, preferably within 48 hours (paras 198.4.5 and 198.4.6).
• The Chief Medical Officer's nominee. Only the Chief Medical Officer may choose that registered medical practitioner; the hospital only forms the board. Each Chief Medical Officer must keep a standing panel and nominate from it, preferably within 48 hours of a hospital's request. The panel is to be reviewed at intervals of no more than 12 months (Harish Rana, 2026, paras 268 to 272 and 322(iv)).

The magistrate and the High Court

• Before acting, the hospital informs the local magistrate (the jurisdictional Judicial Magistrate First Class) of both boards' decisions and of the consent of the people named in the directive. Since 2023, the magistrate no longer visits the patient or authorises the decision (Common Cause, order of 2023, para 198.4.7).
• Every High Court is to direct its magistrates to receive these notices from hospitals when both boards agree (Harish Rana, 2026, para 327(e)). If both boards certify that treatment may be withdrawn, no further court involvement is required (para 318; see also the 30-day period below).
• When life support is withdrawn, the magistrate informs the High Court. The High Court's Registry (its office) keeps the record in digital form, and the paper copy is destroyed three years after the patient's death (Common Cause, 2018, para 193, quoted in 2023 as para 200 and left unchanged).

If a board says no (Common Cause, order of 2023, paras 198.5.1 and 198.6.4; Harish Rana, 2026)

• If the Primary Board decides not to follow the directive, the people named in it may ask the hospital to refer the case to the Secondary Board (para 198.6.4).
• If the Secondary Board refuses, the people named in the directive, the treating doctor or the hospital staff may ask the High Court to decide, by a writ petition under Article 226 of the Constitution (para 198.5.1).
• If the treating doctor or hospital does not start the process even though the conditions are met, the next of kin (the patient's closest relatives) may ask the High Court for directions under Article 226 (Harish Rana, 2026, paras 276 to 278 and 322(v)).

Changing or cancelling a directive (Common Cause, 2018, para 191(d)(viii) and (f))

• You may withdraw or change a directive at any time while you are able to decide, by the same procedure used to make it.
• Withdrawing or revoking it must be done in writing.
• You may revoke it at any stage before it is acted on. The 2023 order left this unchanged (para 198.4.8).

When you change or cancel it, tell everyone who had a copy, including the custodian, so that no one relies on the old one. This is our advice, not a rule of law.

When there is no directive (Common Cause, order of 2023, paras 199 and 200; Harish Rana, 2026)

• The Primary Board discusses the case with the family doctor, if there is one, and with the next of kin (the closest relatives), next friend or guardian (a person who acts for the patient). With their written consent, it may certify that treatment may be withdrawn, preferably within 48 hours of the case being referred (para 199.1).
• The hospital then forms the Secondary Board. If it agrees, the hospital informs the magistrate and the next of kin, next friend or guardian, preferably within 48 hours. The magistrate's visit and endorsement were removed in 2023. The route to the High Court remains (paras 199.2 to 199.4).
• For a patient who cannot decide, the question is whether prolonging life by the treatment is in the patient's best interests, not whether it is in their best interests to die. There is a strong presumption in favour of life, but it can be displaced. Medical and non-medical factors are weighed together, including what the patient would have wanted; that does not by itself override their best interests (Harish Rana, 2026, paras 306 to 316).
• Clinically assisted nutrition and hydration, including tube feeding at home, is medical treatment, not basic care. So the two boards may decide whether to continue, withdraw or withhold it, as with any other treatment (paras 299 to 305).
• If the patient is cared for at home, the next of kin may admit them to any hospital, which must then follow the guidelines. Or they may ask a hospital to designate a primary treating physician, who starts the process. Hospitals may lawfully admit such patients for reassessment (paras 265 to 267, 321 and 322(iii)).
• Once both boards agree, the decision is carried out only after a 30-day period for reconsideration. During it, a person who shows they are entitled to object may challenge the boards' opinions in court, and courts must exercise restraint (paras 273 to 275 and 322(vi)). The Court's reasons concerned disagreements among the next of kin, and the judgment does not say whether the period also applies where there is a valid directive. The period was set by this judgment of two judges, drawing on one judge's separate opinion in the 2018 judgment; it is not in the 2018 directions or the 2023 order, both made by five judges.

What Harish Rana v. Union of India decided (Supreme Court, 2026)

Harish Rana had not made an advance directive. He was in a persistent vegetative state and was fed through a tube. His parents applied to the Supreme Court after the hospital did not start the process (paras 5, 278 and 304). The Court described the case as the first substantive application of the guidelines (para 255), and the first case before it in which they were applied "in their full measure" (para 318). The two judges described what they added as "streamlining" the guidelines (paras 254 and 322).

What it said is set out in the sections above: the governing law (para 98), when a directive can be acted on (paras 105 to 108), tube feeding as treatment (paras 299 to 305), best interests (paras 306 to 316), the Chief Medical Officer's panel (paras 268 to 272), the home-care route (paras 265 to 267), the High Court route when a hospital does not begin (paras 276 to 278) and the 30-day period (paras 273 to 275).

What it directed (paras 324 to 329):

• For Harish Rana: tube feeding to be withdrawn, the 30-day period waived, and AIIMS, New Delhi to admit him to palliative care and carry out the withdrawal under an end-of-life care plan (para 327(a) to (d)).
• All High Courts to direct magistrates to receive notices from hospitals when both boards are unanimous (para 327(e)).
• The Union Government, with the State and Union Territory Health Secretaries, to ensure that Chief Medical Officers prepare their panels without delay, reviewed at intervals of no more than 12 months (para 327(f)).

The Court also urged the Union Government to consider a comprehensive law (paras 279 to 291). It recorded that draft government guidelines on withdrawing life support, released for consultation in June 2024, had reached "no fruitful conclusion" (para 288). It strongly disapproved of "discharge against medical advice" being used in place of palliative care (paras 291, 320 and 323).

Medical questions are for your doctors

This note explains a legal process. It is not medical advice, and Waseeyat cannot tell you what to write in a directive. Before you write one, ask your doctors what the medical terms mean for you and what the treatments involve. If you, or someone close to you, is seriously ill, palliative-care professionals can talk through care with you and your family. Talk, too, with the people you plan to name, so that they understand your wishes. This is our advice, not a rule of law.

How Waseeyat helps

• This note and the Sunset Literacy guide on living wills explain how a directive is made and used, with the source of each rule.
• Waseeyat does not prepare, witness or attest advance medical directives, and it is not a custodian of them. A will made with Waseeyat deals with your property, your executor and any guardian for minor children, not with medical treatment.
• Waseeyat's private vault is not a way to get a living will to your doctors or family: files in it open only from your own account, and Waseeyat does not give your executor or family access to it. Give copies to the people named in your directive and to your family doctor yourself, as the 2023 order provides.

Sources

• Common Cause (A Regd. Society) v. Union of India and Another, Supreme Court of India (Constitution Bench of five judges), Writ Petition (Civil) No. 215 of 2005, judgment of 9 March 2018. No neutral citation is printed on the official copy; the Supreme Court's later texts cite it as (2018) 5 SCC 1. The directions are paragraphs 191 to 196 of the official copy; the 2023 order quotes paragraphs 191 to 194 as paragraphs 198 to 201. Official copy, read 21 October 2026: https://api.sci.gov.in/supremecourt/2005/9123/9123_2005_Judgement_09-Mar-2018.pdf
• Common Cause (A Regd. Society) v. Union of India; Indian Society of Critical Care Medicine (Applicant), order of 24 January 2023 in Miscellaneous Application No. 1699 of 2019 in Writ Petition (Civil) No. 215 of 2005, Supreme Court of India (five judges). No neutral citation is printed on the Supreme Court's copy; the Supreme Court's later texts cite it as (2023) 14 SCC 131. Supreme Court copy, read 21 October 2026: https://api.sci.gov.in/supremecourt/2019/25360/25360_2019_3_504_41295_Order_24-Jan-2023.pdf
• Harish Rana v. Union of India & Ors., Supreme Court of India, Miscellaneous Application No. 2238 of 2025 in Special Leave Petition (Civil) No. 18225 of 2024, judgment of 11 March 2026, 2026 INSC 222. Official copy, read 21 October 2026: https://api.sci.gov.in/supremecourt/2025/60980/60980_2025_7_1501_69246_Judgement_11-Mar-2026.pdf
• The Indian Succession Act, 1925 (Act 39 of 1925), section 2(h). India Code consolidated text as on 19 June 2026, read 9 October 2026: https://indiacode.gov.in/act/3eeb6aec-1e1f-42d4-9673-c04d21829663
• Government of Karnataka, Health and Family Welfare Department: Circular No. HFW 256 FPR 2024 and Government Order No. HFW 256 FPR 2024, both dated 30 January 2025. Official copies, read 21 October 2026: https://hfwcom.karnataka.gov.in/storage/pdf-files/SalientFeaturesofSCJudgmntonWLST_merged.pdf and https://hfwcom.karnataka.gov.in/storage/pdf-files/NomineeofDHOonSecondaryBoard-1-1.pdf
• Nashik Municipal Corporation, Public Health Department: notice on the appointment of a custodian of advance medical directives, reciting the Commissioner and Administrator's order No. 11 dated 18 March 2024. Official copy, read 21 October 2026: https://nmc.gov.in/assets/admin/upload/download/Custodian_नियुक्तीबाबत_प्रसिध्द_करणे.pdf

General information about Indian law, not legal advice. Waseeyat is not a law firm.