As the COVID-19 pandemic continues to ravage the country, doctors across the nation are joining lawyers in urging Americans to create the proper estate planning documents, so medical providers can better coordinate their care should they become hospitalized with the virus.
The most critical planning tools for this purpose are a medical power of attorney and an advance healthcare directive (or living will) that work together to help describe your wishes for medical treatment and end-of-life care in the event you’re unable to express your own wishes. In light of COVID-19, even those who have already created these documents should revisit them to ensure they are up-to-date and address specific scenarios related to the coronavirus.
While all adults over age 18 should put these documents in place as soon as possible, if you are over age 60 or have a chronic underlying health condition, the need is particularly urgent. Contact us right away if you or anyone in your family needs these documents created.
Medical Power of Attorney
A medical power of attorney is a legal document that allows you to name a person, known as your “agent,” to make healthcare decisions for you if you’re incapacitated and unable to make those decisions yourself. For example, if you are hospitalized with COVID-19 and need to be placed in a medically induced coma, this person would have the legal authority to advise doctors about your subsequent medical care.
If you become incapacitated without a medical power of attorney, physicians will generally look to someone in your family to make these decisions for you. If no family can be located, they may ask the court to appoint a legal guardian to be the decision maker. In either case, the person given this responsibility could be someone you’d never want having power over such life or death decisions—and that’s why having a medical power of attorney is so important.
Advance Healthcare Directive or Living Will
While a medical power of attorney names who can make health-care decisions in the event of your incapacity, an advance directive or living will explains how your care should be handled, particularly at the end of life. For example, if you should become seriously ill and unable to manage your own treatment, a living will can guide your agent to make these medical decisions on your behalf.
These decisions could include if and when you want life support removed, whether you would want hydration and nutrition, and even what kind of food you want and who can visit you. To ensure your medical treatment is handled in exactly the way you want and prevent your family from undergoing needless stress and conflict during an already trying time, it’s vital that you document such wishes in a living will.
Keep Your Documents Updated
Even if you’ve already created a medical power of attorney and an advance directive, now is the perfect time to review the documents to ensure they still match your wishes and circumstances. For instance, is the agent named in your medical power of attorney still the individual you’d want making these decisions? Has your health changed in ways that might affect your living will’s instructions? Are you values and wishes regarding end-of-life still the same?
What’s more, whether you are creating new documents or updating your old ones, you should keep COVID-19 in mind. The highly contagious and life-threatening nature of the coronavirus is something medical providers have never dealt with before, and it has strained our nation’s healthcare system to the breaking point.
In light of COVID-19, there are a few unique circumstances you need to be aware of when drafting these documents to ensure all of the potential scenarios related to the coronavirus and its treatment have been properly addressed.
Don’t do it yourself: While you’ll find a wide selection of generic medical power of attorney and advance directive documents online, you shouldn’t trust these do-it-yourself forms to adequately address such critical decisions. This is especially true during the ongoing pandemic, when doctors are constantly tasked with making highly difficult and uncertain decisions for patients suffering from this deadly new virus.
When it comes to your medical treatment and end-of-life care, you have unique needs and wishes that just can’t be anticipated by fill-in-the-blank documents. To ensure your directives are specifically tailored to suit your unique situation, you must work with experienced planning professionals like us to create—or at the very least, review—your medical power of attorney and living will.
Open lines of communication: Because COVID-19 is so contagious, family members of those who’ve contracted the virus are often not allowed to accompany them to the hospital. This means your agent may not be there in person to make your treatment decisions. While most medical powers of attorney give your agent broad authority to communicate with your medical providers, the documents may not explicitly authorize certain types of remote communication.
To remedy this, you may want to consider adding language to your documents expressly authorizing your agent to give directions by phone, Zoom, email, Skype, FaceTime, and other methods. To facilitate this communication, you should bring copies with you to the hospital to give your doctors, and ensure your agent (and any alternate agents named) have updated copies on-hand as well.
Permission to undergo experimental medical treatments: Since there is currently no proven vaccine or other effective treatment for COVID-19, you may consider adding provisions to authorizing your agent to consent to—or withhold consent for—any experimental treatments or procedures that may be developed. Seeing that it could be years before an effective vaccine or cure will be available on a widespread basis, such a provision could be particularly important if you contract the virus while such treatments are still in the trial phase.
Express your wishes about intubation and ventilators: In severe COVID-19 cases, patients often require intubation, which involves putting you into a medically induced coma and inserting a tube into your windpipe, allowing oxygen to be pumped directly to your lungs using a ventilator. However, some directives specifically prohibit intubation, since such measures are often a last resort and used primarily for life-support purposes. Indeed, some people’s greatest fear is being hooked up to a machine just to keep them alive.
That said, some coronavirus patients have successfully recovered after being on a ventilator, so you might not want a blanket prohibition of intubation in all cases. While the exact survival rates are still unknown, early reports from New York City health officials found fewer than 20% of COVID-19 patients ultimately survived after being placed on a ventilator. Reports from China and the U.K. found similar rates.
You’ll also need to weigh the fact that even if you survive after being placed on a ventilator, you’re likely to require months, or even years, of rehabilitation and may never regain the full quality of life you previously enjoyed. And if you’re elderly or have an underlying condition, the prognosis for full recovery is especially slim.
For these reasons, you should carefully review your directives’ provisions regarding intubation and ventilators with us and your doctor to be certain your documents accurately reflect your wishes. There is no right or wrong answer here, so it’s critical your loved ones and medical professionals know what you would want.
To help you make more informed decisions, read What You Should Know Before You Need a Ventilator, a doctor’s perspective about intubation’s potential health consequences for COVID-19 patients. Additionally, you can find a more comprehensive discussion of coronavirus treatment decisions at the non-profit Compassion & Choices resource page, COVID-19: Understanding Your Options.
Consider a liability shield for doctors and hospitals: Due to fear of getting sued, some doctors and medical facilities are hesitant to honor living wills and work with healthcare agents. To deal with this, consider including language in your directives that “indemnifies” medical providers, facilities, and your agent from any liability incurred as a result of following your directions. People and institutions will be much more likely to fully honor your wishes if they understand they likely won’t get hit with a lawsuit for doing so.
Make sure everyone knows about (and has current copies of) your documents: Even if you have the most well thought-out and professionally prepared documents around, they won’t be worth the paper they’re printed on if nobody knows about them. Both medical power of attorney and living wills go into effect the second you sign them, so you should immediately deliver copies to your agent(s), your alternate agents, your primary care physician, and any other medical specialists you’re seeing.
And don’t forget to give those folks new versions whenever you update the documents and have them tear up the old documents. This is a standard part of our practice when serving clients, so when you work with us on your legal documents, we’ll ensure that everyone who needs to have your documents always has the latest version.
The tragic reality of the pandemic is that far too many Americans are at risk of becoming seriously ill and even dying from COVID-19. In light of this dire situation, it’s vital that you and your loved ones take all possible precautions to not only mitigate your chances of catching the virus, but also having the best possible chance of surviving if you should become infected.
In the event you become hospitalized with COVID-19, having updated medical powers of attorney and advance directives in place can make the medical decision-making process for both your healthcare providers and family much safer and easier, while helping ensure your treatment is carried out based on your personal wishes and values. Given the overloaded state of our healthcare system right now, facilitating your medical care in this way could ultimately save your life.
Whether you have yet to create these documents or need yours updated to address COVID-19, meet with us, as your Personal Family Lawyer®, right away to take care of this urgent planning task.
This article is a service of Stafford Law Firm. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session,™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.