Global Evolution of Living Wills[1]
Origins in the United States
The modern idea of a Living Will first emerged in the United States. In 1967, the Euthanasia Society of America proposed the concept of an advance directive. Two years later, lawyer Luis Kutner elaborated the idea in a law journal article, arguing that just as medical treatment requires consent, individuals should be able to record their choices in advance for situations where they could no longer speak for themselves[2].
California became the first state to pass a Living Will statute in 1976. This sparked a steady expansion across the country, evolving through several phases. The first wave in the 1960s and 1970s focused on standard statutory Living Wills. The 1980s and 1990s introduced the Durable Power of Attorney for healthcare, allowing trusted representatives to take medical decisions. The early 1990s saw recognition of ‘Do Not Resuscitate’ (“DNR”) orders to prevent unwanted emergency interventions at home. Later, surrogate consent laws gave families the authority to decide in the absence of directives. Finally, in 1991, the Living Will and the Durable Power of Attorney merged into a single ‘Advance Directive for Health Care’, which could also include organ donation instructions. Charles Sabatino, writing in The Milbank Quarterly (2010), notes that U.S. law steadily moved ‘from a transactional approach to a communicative one’, focusing less on formal legal instruments and more on ensuring that a patient’s voice was heard in the medical setting[3].
Developments in Other Countries
The United States may have pioneered Living Wills, but the concept spread widely, with each country adapting it to its own cultural and legal context.
In Australia, Living Wills are often referred to as ‘Advance Care Directives’ or ‘Advance Health Directives’, and recognized across all states and territories, though the rules vary significantly. For example, Queensland provides a specific statutory form under the ‘Powers of Attorney Act 1998’ and the ‘Guardianship and Administration Act 2000’, while in New South Wales a directive can be valid without a prescribed form if it is clearly expressed and properly witnessed. Importantly, these directives can also nominate a substitute decision-maker and may be stored in Australia’s national digital health record system, ‘My Health Record’, ensuring that medical teams can access them when needed. Scholars have emphasized that advance care planning in Australia plays a crucial role in reducing family distress, supporting medical decision-making, and reinforcing patient autonomy[4].
The United Kingdom has had a longer tradition of encouraging Living Wills. Advocacy began in the 1970s with groups such as Age Concern England, which published influential work on protecting the rights of elderly people in healthcare settings[5]. In 1992, the British Medical Association issued a policy statement formally recognizing the legitimacy of advance directives and providing guidance for practitioners[6]. In the following years, the Law Commission published a consultation paper on medical treatment and research involving incapacitated adults, marking another step in shaping the framework for decision-making when patients could not speak for themselves[7]. The decisive shift came with the Mental Capacity Act 2005, which for the first time gave statutory recognition to advance decisions to refuse treatment. Under this legislation, such decisions must be written, specific, and properly witnessed in order to be legally binding, although even non-binding expressions of patient wishes must still be considered when assessing best interests.
On the other hand, in Japan a survey of 425 residents in a district of Tokyo found that while awareness of Advance Directives (“AD”) is moderately high, around 37% said they knew the term ‘Living Will’ and another 40% had heard of it but very few had actually completed one in writing. Most respondents preferred expressing their wishes verbally to family or physicians rather than in written form. Many felt there was no strong need for legal safeguards or formal documentation. Family members or spouses were overwhelmingly considered appropriate proxies. Key factors associated with favorable attitudes toward ADs included awareness, personal experience with end-of-life situations, preferences about medical treatment, and desire to avoid burdening loved ones. While public interest and informal practices around advance care planning are growing, legal recognition is minimal, and many prefer flexible, relational decision-making over rigid legal forms[8].
Israel took a more formal path in regulating advance directives. In 2005, the Knesset enacted the Dying Patient Law, which permits individuals diagnosed as terminally ill with a life expectancy of less than six months to execute advance directives regarding their medical treatment[9]. The Israeli model is said to represent a careful compromise between respect for individual autonomy and the religious and ethical sensitivities that shape end-of-life care in Israeli society[10].
Global Lessons
The global experience with Living Wills teaches India several important lessons. First, laws must be simple and accessible, avoiding overly legalistic or bureaucratic procedures that hinder timely implementation. Second, directives should be integrated into healthcare systems, for example, through digital health records, so that doctors can rely on them at the bedside without delay. Third, statutes must strike a balance between legal enforceability and flexibility, ensuring that properly documented wishes are respected while still allowing families and doctors to act in the patient’s best interests when no directive exists. Fourth, any framework must be culturally sensitive, recognizing that in societies like India, families often play a central role in end-of-life decisions, and the law should accommodate this reality without undermining individual autonomy. Finally, safeguards are needed to protect medical practitioners who act in good faith, preventing fear of liability from discouraging compliance. Taken together, these lessons point toward a model for India that is compassionate, practical, and firmly grounded in respect for human dignity. As India continues to refine its own system, these lessons provide a roadmap for building a framework that is both compassionate and practical.
This article is the second in our three-part series on Living Wills. In the third and final part of this series, we will turn to the practical implementation of Living Wills in India, focusing on Maharashtra’s pioneering efforts and the road ahead for making advance medical directives a reality across the country.
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[1] Authors: Dr. (Lt. Col) G U Deshpande, MD (Path), DCP, FICP & Advisor to Fountainhead Legal & Advocate Rashmi Deshpande, Founder – Fountainhead Legal
[2] https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=2525&context=ilj
[3] Sabatino CP. The evolution of health care advance planning law and policy. Milbank Q. 2010 Jun;88(2):211-39. doi: 10.1111/j.1468-0009.2010.00596.x. PMID: 20579283; PMCID: PMC2980344.
[4] https://www.publish.csiro.au/AH/pdf/AHv36n1toc
[5] Brown R. Sally Greengross, The Law and Vulnerable Elderly People. Age Concern England, Mitcham, Surrey, 1986, 144 pp., £6.50, ISBN 0 86242 050 4. Ageing and Society. 1987;7(1):120-122. doi:10.1017/S0144686X00012447 [6] BMJ 1998; 317:146
[7] McNulty C. Mentally Incapacitated Adults and Decision-Making: A Psychological Perspective: Comments on Law Commission Consultation Papers, Numbers 128, 129 and 130. Medicine, Science and the Law. 1995;35(2):159-164. doi:10.1177/002580249503500210
[8] Akabayashi A, Slingsby BT, Kai I. Perspectives on advance directives in Japanese society: A population-based questionnaire survey. BMC Med Ethics. 2003 Oct 31;4: E5. doi: 10.1186/1472-6939-4-5. PMID: 14588077; PMCID: PMC272930.
[9] Steinberg A, Sprung CL. The dying patient act, 2005: Israeli innovative legislation. Isr Med Assoc J. 2007 Jul;9(7):550-2. PMID: 17710789.
[10] Shvartzman, Pesach, Yonatan Reuven, Mordechai Halperin, and Sasson Menahem. “Advance Directives — The Israeli Experience
