If you are ever unable to communicate your medical wishes, then medical professionals may look to your Living Will, Durable Health Care Power of Attorney, and HIPAA authorization documents to provide the appropriate guidance.
A Living Will specifies what you want to have happen to you if you are ever in a terminal condition, persistent vegetative state, or end-stage condition.
A Durable Health Care Power of Attorney is the legal document in which you name an individual to make health care decisions for you when you are unable to communicate those decisions yourself.
A HIPAA authorization document is where you name who you want to have access to your medical records.
The goal is for the Durable Health Care Power of Attorney agent to read your Living Will and then communicate your wishes to the health care providers on your behalf.
COVID-19 is a serious life-threatening respiratory condition that has resulted in chaos, death, extended hospitalizations, and a general strain on the health care system. During these times of uncertainty, it is advisable to have your Living Will, Durable Health Care Power of Attorney, and HIPAA authorization kept up to date with clear instructions. Below is a list of things to consider when evaluating if your Health Care Documents are up to date:
- Who is the person that you trust to make health care related decisions for you?
This person(s) should be named in your Durable Health Care Power of Attorney. It is also a good idea to have back-ups in case the primary agent is unable or unwilling. If you have Health Care documents in place already, you should review them to make sure the person you have designated is up to date. This agent is the person who should follow the terms of the Living Will.
- What terms do I get to specify in my Living Will?
In general, your wishes for end of life care. For instance, if death is imminent and there is no reasonable expectation of recovery, you are able to specify what should happen next. One option is that you are kept comfortable, but you want natural death to occur and you do not want any medical interventions to try and extend your life. Another option is to receive (or deny) nutrition and fluids by tube or other medical means. Alternatively, you may elect for the medical professionals to try and extend your life for as long as possible, using all available interventions to try and prevent or delay death. This could mean the use of a ventilator if you are suffering from COVD-19.
- What about ventilators during COVID-19?
A ventilator is a machine used to move breathable air into and out of the lungs to deliver breaths to a patient who is unable to breathe sufficiently. In a study published in the Journal of the American Medical Association, 5,700 patients hospitalized in the New York City Area with COVID-19 were analyzed.[i] The study reports that 12.2% received invasive mechanical ventilation. As of April 4, 2020, for the patients requiring mechanical ventilation, 3.3% were discharged alive, 24.5% died, and 72.2% remained in the hospital. This study should not be used to guide personal decisions about whether you want mechanical ventilation. Instead, the study may be used as a reference point. Some people may want the use of a ventilator during COVID-19, while others may not. Some may view being hooked to a machine as their greatest fear, while for others it may signify hope. Specifying your intentions in your Living Will and communicating with your Health Care Agents is the best way to ensure that your wishes are kept. These documents should be in place prior to bad things happening, as it is difficult to know exactly how the medical professionals will assess whether or not a patient can recover from COVID-19.
- How can I account for the uncertainty in diagnosis, treatment, and recovery, surrounding COVID-19?
In your Living Will document, you get to specify how you would like to be treated as noted above. In addition, you may also state that you want your wishes followed exactly as you have documented. Alternatively, you may indicate that you would like your wishes to be used as a guide, but to allow for flexibility if it would be in your best interests. These two options are very different, and you should put a lot of thought into deciding which option best suits your situation. Let’s take a look at an example:
A patient has been diagnosed with COVID-19. The doctors believe that this is a terminal condition with no reasonable expectation of recovery. In the Living Will, the patient has indicated that he/she does not want any medical interventions used to try and extend life and that they do not want nutrition and fluids by tube or other medical means. The patient has also indicated that they want their wishes followed exactly as they have indicated. Technically, notwithstanding any new treatments/cure for COVID-19, the patient should not receive any further medical interventions aside from being kept comfortable and allowing natural death to occur.
On the other hand, if the patient elected no medical interventions used to extend life, yet allowed for flexibility in applying this standard, then technically there is more room for the doctors and health care agents to figure out if there is a better alternative to allowing death to occur naturally. As medical professionals continue to learn more about COVID-19, a flexible approach to the Living Will allows for any future advances in diagnosis and treatment of the virus to be taken into account prior to making any decisions that are specified in the Living Will.
- What should I do now?
Decisions in a Living Will and who will serve as your Health Care Agent are unique to you. Doing your own research, and having your intentions spelled out clearly in the correct legal documents is the best way to ensure your wishes are kept.
If you have Estate Planning documents with Sinclair Prosser Gasior, you may schedule a free consultation to have your documents reviewed.
If you do not have Estate Planning documents with Sinclair Prosser Gasior, you may schedule an appointment to discuss your Estate Planning goals.
[i] Richardson S, Hirsch JS, Narasimham M, Et al. Presenting Characteristics, Comorbidities, and Outcome s Among 5700 Patients hospitalized with COVID-19 in the New York City Are. JAMA. Published online April 22, 2020. Doi:10.1001/jama.2020.6775
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