COVID-19 Highlights Critical Need for Advance Health Care Directives—Part 2

In the first part of this blog series, we discussed the vital importance of having updated Advance Health Care Directives in place in light of COVID-19. In this post, we’ll look at several additional provisions you should consider adding to your Directives to address potential contingencies related to the pandemic. 

With new cases of COVID-19 currently surging in dozens of states, doctors across the country are joining lawyers in urging Americans to create the proper estate planning documents, so medical providers can better coordinate their treatment and care should they become hospitalized with the virus. 

The most crucial planning tool for this purpose is an Advance Health Care Directive that describes your wishes for medical treatment and end-of-life care should you become unable to express your own wishes. 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 urgency is paramount.

COVID-19 Considerations

What’s more, in light of COVID-19, even if you’ve already created these documents, you should revisit them to ensure they are up-to-date and address specific scenarios related to the coronavirus. In the first part of this blog series, we discussed some unique circumstances related to COVID-19 and its treatment that you should be aware of when creating or updating your Directive. 

Here, we offer several more provisions you should consider adding to your directives to ensure the documents address as many potential contingencies as possible during the ongoing pandemic.  

  1. 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 your Directive 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.

  1. 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 the provisions in your Direcdtive 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. 

  1. Consider a Liability Shield for Doctors and Hospitals

Due to fear of getting sued, some doctors and medical facilities are hesitant to work with healthcare agents. To deal with this, consider including language in your Directive 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. 

  1. Make Sure Everyone Knows About Your Advance Health Care Directive

Even if you have the most well thought-out and professionally prepared Directive around, they won’t be worth the paper they’re printed on if nobody knows about them. Your Directive goes into effect the second you sign it, 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. 

Pandemic Planning 

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 Advance Health Care 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.

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