By S&S Co. Advocates & Solicitors · Published 21 October 2026 · Informational content, not legal advice: see our disclaimer
A living will is not a will in the sense families usually think of one. It does not deal with property at all. It is a document you sign while you are of sound mind, telling doctors and your family what you do or do not want done to keep you alive if you are later terminally ill, in a permanent vegetative state, or otherwise unable to make that decision yourself. Indian law calls it an Advance Medical Directive, and it exists because the Supreme Court said the right to die with dignity is part of the right to life under Article 21, not because Parliament legislated on it.
The procedure for executing one has changed twice: once in the 2018 judgment that first recognised passive euthanasia, and again in a 2023 order that tried to fix what doctors said was an unworkable process. What follows is the position as it stands after that 2023 change, including the uncomfortable fact that several states still have not built the machinery the Supreme Court told them to build.
Where this right actually comes from
The starting point is Common Cause v. Union of India, decided by a five-judge bench in March 2018. The Court held that the right to live with dignity under Article 21 includes the right to die with dignity, and that this extends to a right to refuse medical treatment, including life support, where a person is in a terminal or incurable condition with no hope of recovery. The judgment allowed passive euthanasia, meaning the withdrawal or withholding of life-sustaining treatment, while continuing to treat active euthanasia as outside the law's protection.
Because this was a court-made right and not a statute, the same judgment also laid down the procedure for executing and acting on an Advance Medical Directive, since there was no legislation to borrow one from. That is the part that proved difficult to run in practice, and it is also the part the Court revisited five years later.
It matters to say plainly that these directions operate only until Parliament actually legislates on the subject. Nothing in either judgment stops the government from replacing this entire framework with a statute, and doctors' bodies have periodically pressed for exactly that, arguing that a court-drafted procedure is a poor substitute for one built with medical and administrative input from the start.
What changed in the 2023 order
In January 2023, the Supreme Court modified its own 2018 directions in response to a plea from the Indian Society of Critical Care Medicine, which told the Court the original procedure was too cumbersome to actually use. The 2018 version required the directive to be signed before, and countersigned by, a Judicial Magistrate of the First Class, and required the magistrate's prior approval before any decision to withdraw treatment could be acted on.
The 2023 order removed the magistrate from the execution step entirely. A living will now has to be signed in the presence of two attesting witnesses and attested by a notary or a gazetted officer rather than a judicial magistrate. The magistrate's role was pushed later in the process: instead of approving the decision in advance, the hospital's medical board now only has to inform the jurisdictional magistrate before withholding or withdrawing treatment, and can proceed without waiting for a response. The obligation to appoint a custodian who keeps the directive safe and makes it available when needed was placed on a local government officer, typically someone at the municipal corporation, municipality or panchayat level.
The underlying medical safeguard was kept, though simplified: a decision to act on the directive still goes through a medical board process at the treating hospital, meant to confirm that the patient's condition genuinely falls within the categories the directive is meant to cover, before any life-sustaining treatment is withdrawn.
Executing one in practice: witnesses, attestation, custody
A workable living will, as the law now stands, needs to be in writing, signed by the person making it while they are mentally competent, and signed in front of two witnesses, who should preferably be independent of the person's immediate family. It then needs to be attested by a notary or a gazetted officer, who should record their satisfaction that the person signing understands what the document does. The directive should state clearly what categories of treatment are being refused and in what circumstances, since a vague document gives a medical board very little to act on later.
The harder part is custody. The whole point of appointing a custodian is that the document needs to be findable at the moment a hospital actually needs it, often years after it was signed and often when the person who signed it cannot speak for themselves. A living will sitting in a bank locker that nobody can open in an emergency defeats its own purpose. Clients are usually better served by keeping a copy with a trusted family member or treating physician in addition to whatever custodian the local authority has designated, and by telling that family member where the original sits.
A directive drafted in vague language, such as a single line refusing all treatment without further elaboration, tends to cause more disagreement than it resolves once a medical board sits down to interpret it. A better-drafted one names the specific conditions the refusal applies to, such as an irreversible coma or an advanced terminal illness with no prospect of meaningful recovery, and distinguishes that from ordinary emergency treatment for a condition that is actually reversible.
Why implementation still varies sharply by state
The custodian requirement sounds simple on paper and has turned out to be the weakest link in practice. A public interest petition filed before the Bombay High Court by a Mumbai doctor pushed the Maharashtra government to report on its progress, and the state's own affidavit said it had appointed over four hundred custodians, a small number in the larger municipal corporations of Mumbai, Pune, Thane and Navi Mumbai, and the bulk spread across smaller city councils and nagar panchayats. The Bombay High Court was openly critical of how long this had taken and directed the state to put the remaining mechanism, including an online registration portal, in place within a fixed period.
Karnataka moved through its state health department, issuing a circular at the end of January 2025 that set out how its medical boards are to be constituted, with a primary board including the treating physician and at least two senior medical experts, and an escalation route to a secondary board if the primary board does not agree to withdraw life support. Reporting on which state actually implemented the directive first is inconsistent, since Kerala is generally credited with issuing an earlier notification without the follow-through Karnataka managed.
For a family dealing with this in a state that has not yet built a functioning custodian system, the practical reality is that a validly executed directive may still sit in administrative limbo when it is needed most. That is a genuine gap in the law as it currently operates, not a drafting problem a better-worded document can fix on its own.
What a living will cannot do
A living will does not authorise active euthanasia, meaning a deliberate act to end a person's life such as administering a lethal dose. It permits only the withdrawal or withholding of treatment that would otherwise prolong a dying process with no realistic prospect of recovery. It also does not override the medical board's independent assessment of the patient's condition. The directive expresses the patient's wishes in advance, but a hospital still has to form its own view, through the board process, that the patient's actual condition matches the circumstances the directive was written for.
It is also not a substitute for a regular will dealing with property, nor for a medical power of attorney naming someone to make treatment decisions on your behalf in situations the directive does not specifically anticipate. Families sometimes assume one document can do all of this. It cannot, and treating a living will as covering more ground than it actually does is one of the more common ways these documents fail at the moment a family needed them to work.
Frequently Asked Questions
Who can legally attest an Advance Medical Directive now?
A notary or a gazetted officer, in the presence of two witnesses. The earlier requirement of execution before a Judicial Magistrate of the First Class was removed by the Supreme Court's January 2023 order, which also pushed the magistrate's role to a later, informational stage rather than a prior approval step.
Does a living will let doctors actively end a patient's life?
No. It only permits withdrawing or withholding life-sustaining treatment where recovery is not realistically possible, which the law treats as passive euthanasia. A deliberate act intended to end life remains outside what any Indian court has sanctioned, living will or not.
What happens if my state has not appointed a custodian yet?
The directive is not automatically invalid, but there may be no designated local official to register and hold it the way the Supreme Court's framework contemplates. Keeping copies with family and the treating physician, and confirming your municipal body's current position, reduces the practical risk until the state's own machinery catches up.
Can a hospital refuse to act on a validly executed living will?
The hospital's medical board still has to independently confirm the patient's condition falls within the terms of the directive before acting. If the board disagrees that withdrawal is appropriate, or the family disputes the board's view, the matter can go to a secondary board and, if that also fails to resolve it, ultimately to the jurisdictional High Court.
References & Further Reading
The provisions and rulings below were relied on for this guide. The position can change with amendments and later decisions, so check the current text and the latest case law before acting on any of it.
- Common Cause v. Union of India, (2018) 5 SCC 1 (five-judge bench, 9 March 2018, recognising passive euthanasia and the right to die with dignity under Article 21)
- Common Cause v. Union of India, order dated 24 January 2023 in M.A. No. 1699 of 2019 in W.P. (C) No. 215 of 2005, reported at (2023) 14 SCC 131 (modifying the 2018 execution procedure)
- PIL No. 3 of 2024 before the Bombay High Court (Dr Nikhil Datar), directing the Maharashtra government on custodian appointment and portal implementation for living wills
- Karnataka Health and Family Welfare Department circular dated 30-31 January 2025 on constitution of primary and secondary medical boards for Advance Medical Directives