May 11, 2020
Authored by: Tiffany McKenzie
The numbers of confirmed cases of U.S. citizens with COVID and of those who die from COVID related symptoms are continuing to rise. COVID-19 has caused life-threating respiratory conditions, extended hospitalizations, and a resulting strain on our healthcare system. Because COVID-19 is so contagious, the loved ones and family members of sick patients are not able to accompany them to the hospital. Consequently, the virus underscores for all of us the importance of healthcare planning, particularly by having an advance directive or living will.
Advance directives are legal documents that specify healthcare treatment preferences (the “living will” portion) and designate a “healthcare proxy.” The proxy, also known as a healthcare agent, is a person you designate to make decisions for you in case you become unable to make them for yourself. The directive allows you to provide guidance for your agent and doctors if you are unconscious or otherwise near the end of your life.
Most healthcare directives should address all of your healthcare needs during this pandemic, though there are a few important issues to consider and reassess in light of the COVID-19 crisis:
Communication: If you are admitted to a hospital, and are able, you should immediately state what your wishes are regarding medical treatments available for treating COVID-19, including experimental treatments, intubation and ventilation, if necessary. In addition, while most directives give your healthcare agent broad authority to communicate with your healthcare providers, the authority for digital communication may not be explicitly contemplated. If this is the case, you may want to consider editing your directive to allow your healthcare providers to take direction from your healthcare agent by phone, Facetime, Zoom, or other remote methods considering your agent may not be able to accompany you in the hospital.
Intubation and Ventilation: Generally, doctors will not withhold a ventilator if you have COVID-19 unless they believe you have no hope of recovering. That is because, in most cases, a healthcare directive becomes legally effective only if a doctor determines you have a terminal condition—one that cannot be cured or reversed by treatment. Nonetheless, hour by hour, medical professionals are making very difficult decisions for patients in severe respiratory distress. Even if doctors know a patient has made an advance directive, they may struggle to assess whether or not that patient can recover or whether the patient would want to be put through extensive and invasive procedures for a slim chance at regaining their previous quality of life. Therefore, it may be appropriate to edit your directive with COVID-19 in mind and provide for your wishes regarding medical treatments available for treating COVID-19, including experimental treatments, intubation and ventilation, if necessary.
Please let us know how we can help you prepare a healthcare directive appropriate for your state or how we can help amend your current healthcare directive. Also, if you are concerned about finding witnesses or notaries during this time to execute your healthcare directive, please visit our Bryan Cave Estate Planning Tool guide which provides the basic requirements for the execution of these types of documents.