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Should You Update Your Health Care Directives for COVID-19?

Key documents provide health surrogates legal authority in end-of-life situations

spinner image Couple sitting at the table with a laptop looking through their health care directives papers
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 | Four months into the COVID-19 outbreak in the United States, we know we can expect the pandemic to go on for some time. At my law office, the number one call I'm receiving is from folks who want to get their health care directives in place in case they are hospitalized due to COVID-19. And they want them done ASAP.

If you're one of the over 60 percent of Americans who haven't prepared any life care documents, there is no time like the present to put your wishes on paper. And if you have already created advance directives and designated a health care surrogate or proxy, go review your documents and determine whether they need to be updated for any reason. If they are older than five years, consider making new ones.

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Key documents for all ages

Living wills and health care agent appointments are critically important documents for adults of any age. They provide legal authority to your caregivers in times of crisis, and peace of mind that your wishes are known and will be carried out. I encourage everyone to have them. There are virtually no drawbacks to making these documents, and they are readily available online, for free.

Simply put, these documents specify your health care preferences if you are at the end of life and specify who will make your decisions for you if you cannot make or express them for yourself. Not a happy thought, but any of us could be hospitalized and unable to communicate our wishes. COVID-19 aside, over half of adults over age 65 who are admitted to the hospital cannot speak for themselves; most people who are dying cannot speak.

Advocating during COVID-19

Many people are inquiring about whether they should write COVID-19-specific directions into their advance directives. They also want to know if they should express their wishes for medical treatments generally given to COVID-19 patients. Caregivers want to know how they can advocate for their loved ones when they cannot be physically present due to visitor restrictions.

Some are requesting specific directions be written into their documents that reflect the stories we've been reading and hearing about COVID-19, such as:

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• Providing express authorization for agents and surrogates to communicate with providers remotely and via all forms of communication, including web conference, FaceTime, telephone, email, etc., and expressly permitting medical providers to take written instructions.

• Expressing end-of-life wishes for use or withdrawal of certain treatment, especially intubation. It's been reported that many COVID-19 patients who require a ventilator do not survive. While there is no reliable data on this point, we do know that older adults with certain underlying medical conditions are less likely to recover from illness caused by COVID-19 or treatment with a ventilator. People want to know if they should clarify that they do (or do not!) want ventilator treatment if they have COVID-19 and are admitted to a hospital.

Rest assured, well-drafted documents may not need much — or any — tinkering to address these COVID-19 issues. First, it is unlikely that your providers would require in-person conversation with your surrogate, but there is no harm in including remote communication authorizations in your documents. Second, it's important for you to know that a living will comes into play only if certain conditions are met. For example, my Florida living will states that I want such treatment withheld only if it has been confirmed by two providers that there is no chance of my recovery and I have a terminal or end-stage condition, or am in a persistent vegetative state. If those conditions aren't met, it would not prevent me from being placed on a ventilator, if needed, for COVID-19 treatment.

Talk about wishes — now

Whether making these documents for the first time or updating them because of COVID-19 concerns, remember that there is no way you can dictate every possible health condition or scenario. So, while you can and should be explicit about your health care instructions, the best course of action, in my opinion, is to empower your health care agent to make decisions on your behalf and to talk to them about your wishes. There are online scripts and decision guides that will walk you through different medical scenarios, including coronavirus-specific situations. Talk it through with your named surrogates. If talking is too difficult or you want to be sure that you have clearly expressed yourself, write them a letter.

State-specific rules

Your state of residence has its own specific laws for health care agents and advance directives. Be sure to use state-specific documents and to follow the instructions for signing and witnessing them exactly. You can find them for each of the states here.

When in doubt, call an attorney to help guide you on the meaning of these documents, how they work and what instructions you should add to them beyond their standard language.

And finally, once you make these documents, freely share them with your surrogates and medical providers. A missing document is just as useless as no document at all. Give copies out, store them electronically, even keep copies in your glove box. Leave no chance for your wishes to go unknown or unacknowledged, especially when it comes to the life you want to live and death you wish to have.

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