Coronavirus: Living Wills And Health Proxies – What Steps Should You Take Now
Originally posted on Forbes.com
Coronavirus Impact on Your Key Legal/Health Care Decision Documents:
Coronavirus, novel Coronavirus, or COVID-19 is a novel viral infection that can cause severe pulmonary insufficiency and respiratory failure, and in the worst cases, death. Coronavirus triggers lower respiratory tract infection, which means that most of the symptoms are felt in the chest and lungs. It has been declared by WHO to be a Pandemic.
It is important that every adult have in place a living will, health proxy and HIPAA release. What key steps should you take now? Why might your existing documents be dangerously wrong and how can you fix them? How has the current environment changed how these documents will be used? How might you update your documents to address these new conditions? What other practical steps can you easily take to protect yourself, and your loved ones?
Think of Others: If you have elderly parents or other loved ones, these may be vital steps for them to take.
Tough Realities: The tragic reality is that many people will become ill and too many will die. Having the correct documents in place may make medical decision making easier, and it could avoid tragically wrong medical decisions from being made.
Be Sure Your Documents are Current:
You should make sure that you, and elderly or ill loved ones, have current legal documents: living wills, healthcare proxies, HIPAA releases, powers of attorney and wills.
Documents that are old, e.g. 10 years or more, may be viewed as stale, and even though they remain legally binding, they could be more difficult to use. You should be certain that these documents reflect your current wishes. We’ll define each of these documents but then focus the rest of our discussion on what is unique in the current environment and specifically what you should discuss with your attorney in light of coronavirus, or if you prepare your own health care related documents online, steps you might want to take to modify or correct those documents.
Living will – A statement of your health care wishes. It might also address religious considerations, personal preferences and more. Mistakes in these documents could be especially problematic considering coronavirus.
Do Not Resuscitate (“DNR”) – A document in which you specificy that you do not want heroic or resuscitative measures in the event of a cardiac or pulmonary event.
Healthcare proxy – A legal document in which you name a person, called your agent, to make health care decisions for you if you are not able to do so. The current environment is unique in history and a specific change to health care proxies and HIPAA releases (below) might be warranted.
HIPAA Releases – A legal document in which you name a person, called your agent, to communicate with your medical providers and have access to your private health information. Just as with the health care proxy document above, this is a unique time, and special modifications might be worthwhile to make to these documents.
The following financial documents are important to have, but won’t be discussed further in this article:
Power of attorney – A legal document in which you name a person, also called your agent (but not to be confused with the agent under the health care documents above), to handle financial, tax and legal matters if you cannot do so.
Will – A legal document in which you designate guardians for your minor children and direct how assets you own will be distributed after your death. Many people use a revocable trust as their primary dispositive document.
Review Your Health Care Instructions Including Living Wills:
Every adult, but especially if you are over age 60 or if you have a chronic underlying condition, should immediately review their healthcare related documents including: living will, DNR, healthcare proxy, and HIPAA release.
You should have signed current documents in place that reflect your wishes. Your health proxy and HIPAA release should list an agent who is able and willing to act. It should also list several successors. If your document is old, if you’ve moved, or if older family or friends are not well, you might need to revise the document and name new people. While these steps may be obvious to you, at this very difficult time, it is important to address these. If you have elderly parents or other loved ones, be sure they do as well.
Be certain that you have printed copies of current documents prepared to take with you if you are hospitalized. Having PDFs obtainable using an online app is great but having an envelope with photocopies of the signed documents might make it easier to get through hospital admissions.
Apart from the general points there are several critical issues with respect to these health care related documents may warrant immediate revision of your documents. These issues are specific to the current coronavirus pandemic.
Modify HIPAA Releases, Living Wills, DNRs and Health Proxies for Coronavirus:
Historically, if you were hospitalized and a medical decision had to be made, your agent would likely be in the hospital with you, with your documents in hand, prepared to act. Given quarantines and the need for social isolation this may not be permitted in the current environment. That changes the way your health care proxy or HIPAA documents may be used. The agent likely won’t be there to sign documents and communicate decisions in person.
Language might be expressly added to all healthcare related documents expressly authorizing your health care agent to give directions by telephone, web conference, email, Skype, FaceTime and other forms of communication. Your document should be updated to expressly permit medical providers to accept and rely on your agent’s instructions using those forms of communication. Decision-making by your health care agent should be permitted in the above manners. The documents should expressly hold harmless and indemnify all medical care providers from any liability whatsoever for relying on those indirect means of communication by the agent to them. This is a unique situation that is never arisen before and is not contemplated in many of the forms and documents in use. My documents don’t have this language and I am in the process of updating them to add that language.
Look at your current documents if you have them. If your documents don’t state clearly that the above types of decision making are permitted, they may not be. If you don’t have existing documents, get them, whether from your attorney, an online service, or other source. Read them carefully and see what they provide for communication and decision making. If they don’t address this important matter, consider the sample language provided below.
Sample Clause to Review with Your Attorney:
“I expressly authorize my Agent to communicate decisions to any medical provider verbally, in person, by telephone, via email, via web conference including but not limited such services as Skype, FaceTime, or in any other manner appropriate to the circumstances.
Further, I expressly hold harmless any medical provider for relying on such communications of decisions and directions by my Agent. The express purpose of this provision is to foster decision making by my Agent in remote or indirect manners that may be necessary or advisable given whatever circumstances accompany such decision making.”
Review Language About Intubation in Your Health Care Documents:
If you have existing documents review the language in them that addresses intubation. Intubation is the process of inserting an endotracheal tube into the trachea to secure an airway and breathe for the patient (i.e., provide oxygen to the patient). The machine used to do this breathing is a ventilator, which is also referred to as a breathing machine, or a respirator. Because of the nature of coronavirus, this may be essential to treat you for coronavirus should you contract it. However, many standard documents and forms include absolute prohibition of intubation and could prove to be a death sentence if you or a loved one contracts coronavirus. Think about it. There is a shortage of ventilators. If you are hospitalized and the medical facility has to make decisions which patients get to use the limited number of available ventilators, if your living will has a mandate not to be put on a ventilator, why would you be allocated a scarce respirator? Review your document and revise it if necessary.
Why do some forms include such blanket language? Most people that included such language likely fall into one of two categories. Some simply signed whatever document they were given or that they found online. Bad move. No one should ever sign a legal document they don’t understand. The second category is those that had in mind that if they were in a terminal condition, and there was really no hope of recovery or quality of life, e.g. in a persistent vegetative state, they did not want to be hooked up to “a bunch of tubes” being kept artificially alive. For somebody who has an underlying medical condition, such as diabetes, and is deemed old, (60+ is deemed old for purposes of coronavirus,) if they contract the virus they would almost assuredly want to be intubated if that meant that they would survive the virus. I fall into that category and I would certainly want every medical step taken to preserve my life! Many of people age 60 with diabetes, or other conditions, might be very likely to survive coronavirus but may have to be intubated. This is a very different situation than that contemplated when many people living wills and other healthcare documents with blanket prohibitions. Read your documents if you have documents and be sure that they say what you really intend. If not, get new documents which have more reasonable proscriptions for intubation that won’t preclude the care you might actually want.
Caution: Remember state laws differ and everyone’s situation is unique, so the preferable way to address all of this is by consulting with your attorney.
Yet Another Problem: How will you witness and notarize your new documents? Is it really necessary? Remote and electronic witnesses and notarization remains an issue for many documents especially wills. The law needs to change and catch up with the times. For this you really need a lawyer in your state to guide you.
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