HEALTH CARE DIRECTIVES AND COVID-19
The coronavirus pandemic has brought into sharp focus the precariousness of life and the uncertainty of the future. Anyone at any time could find herself the victim of a serious injury or illness. Even if you are spared from COVID-19, eventually you are likely to experience a medical crisis. Be prepared with your health care directives. Health care directives are legal documents that allow you to express your wishes for end-of-life care and to choose a person to make treatment decisions for you if you are unable to make them for yourself. Preparation now is the key to sound decision-making in a health crisis later. In her moving article, I’m a Doctor in a COVID-19 Unit. Here’s One Vital Step I Wish Everyone Would Take, Dr. Asha Shajahan makes a compelling case for health care directives. Dr. Shajahan observed that just one of the 55 patients in her unit had a health care advance directive. She had to ask the other patients about their wishes for critical care and end-of-life treatment, decisions that were terrifying for them to make while alone and very sick. Some of her patients were sedated and on ventilators making it impossible for them to express their treatment wishes. She mentioned one young man who was on a ventilator and near death. Sadly, his parents disagreed on his treatment. His father wanted to let him pass peacefully, while his mother wanted him to have any treatment that might keep him alive. Dr. Shajahan described talking to the sister of a 37-year-old man who was also on a ventilator. The sister did not know her brother’s treatment wishes and was too overwhelmed to make decisions for him. Dr. Shajahan’s experience on the COVID-19 unit convinced her to put her own health care directives in place and she urged others to do the same while at home and healthy. COVID-19 can be a springboard to important discussions with loved ones about what medical care you want and who you want to make medical decisions for you if you cannot speak for yourself. Facing these questions can be difficult, but answering them can bring you peace of mind and relieve your family of the burden should you become critically ill. With properly executed health care directives, you can save your loved ones the pain of indecision and disagreement over your treatment and the guilt of thinking that they may have made the wrong decisions for you.
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II. LIVING WILLS
A. WHY YOU NEED A LIVING WILL ESPECIALLY DURING THE COVID-19 PANDEMIC A living will is a legal document that states your wishes regarding end of life medical treatment. Your state may have a specific form you should use and sometimes it is called by a different name. Other names for a living will include:
• Advance directive.
• Advance medical directive.
• Advance decision form.
• Advance health care directive. Many of the serious cases of COVID-19 require immediate decisions regarding emergency treatment to keep the patient alive. Decisions that might come up at this time relate to:
• CPR (cardiopulmonary resuscitation)
• Ventilator use
• Artificial nutrition (tube feeding) and artificial hydration (IV, or intravenous, fluids) • Comfort care In this situation, having a living will help ensure you receive care according to your wishes.
1. WHAT A LIVING WILL DOES A living will outlines the type of medical treatment you wish to receive (or not to receive) if you become terminally ill and are no longer able to make your own decisions or are permanently in a vegetative state. The living will helps your family and health care professionals determine whether you want death-delaying procedures in these situations. A terminal condition usually means an incurable and irreversible condition where death is imminent and the use or application of any death delaying procedures serves only to prolong the dying process. A few things a living will does not do include:
• Appoint a representative to carry out your wishes.
• Apply to conditions that are not terminal or vegetative.
• Appoint a representative to manage your property or finances.
2. WHO CAN MAKE A LIVING WILL Any competent adult can make a living will. Different states may have slightly different standards, but in general, an adult is anyone over the age of 18. Competent means that the person executing a living will understands the document he or she is signing and can communicate his or her wishes.
3. WILL MY DOCTOR HONOR MY LIVING WILL? Your doctor does not have to honor your living will if he or she has religious, moral, or ethical objections or believes it would not be consistent with sound medical practice. However if your doctor does have such objections, he or she is ethically obligated to transfer your care to other providers who are willing to follow your wishes. The best policy is to make sure in advance that you have a doctor who will follow your wishes by taking these three steps. First, give your doctor a copy of your living will, discuss your decisions with the doctor, and get assurances that he or she will abide by them. Second, execute a health care power of attorney that names an agent to make health care decisions for you when you no longer have the capacity to make decisions for yourself. Give your agent a copy of both your living will and health care durable power of attorney and make sure he or she is prepared to see that they are followed. Third, share these documents with close family members and make sure they are aware of your wishes.
4. MUST I HAVE A LIVING WILL? There is no legal requirement that you have a living will. However, a living will is a good idea for several reasons:
• To ensure your wishes are followed regarding medical care at the end of your life. A living will allows you to direct which, if any, life support measures you wish to refuse if you are terminally ill or permanently unconscious and cannot communicate.
• To relieve your loved ones of the burden of making end-of-life decisions without knowing your wishes.
• To enable your doctor to follow your instructions. Without a living will, a doctor may be concerned that it may constitute medical malpractice or even a crime if he or she withholds or removes treatment.
• To keep your private wishes on dying out of the probate court, where these disputes may end up. Without a living will, your family and medical care providers may disagree as to what care should be provided or withheld. If they don’t all agree, the matter may end up in court.
B. TREATMENT CHOICES IN YOUR LIVING WILL A living will allows you to request your health care providers to administer life-prolonging treatment, withhold such treatment, or stop such treatment after a specified time. Living will forms vary from state to state but all cover similar topics related to end of life care and death. Some spell out particular treatments that you can choose or decline, while others simply allow you to choose between requesting life-prolonging treatment or refusing life-prolonging treatment. In some states, you are not required to use the state form; you can use a custom-drafted one. Common items to consider are whether:
• You want medical personnel to attempt to resuscitate you should you experience cardiac arrest.
• You want to be placed on a ventilator to help you breathe.
• You want to be hydrated and fed through IVs and a feeding tube if you can’t eat or drink.
• You want dialysis if your kidneys fail.
• You want to be given medication to treat infections.
• You want to undergo surgery if necessary to prolong your life.
• You want only palliative care to keep you comfortable and pain-free. Discussing these decisions with your doctor before making your living will is a good idea. Your doctor can explain the risks, benefits, and consequences of these treatments so you can make a more informed decision. Your doctor can also tell you if he or she has reservations about following your instructions which will allow you the opportunity to find another doctor. A living will may also indicate your:
• Desire to become an organ or tissue donor.
• Religious preferences.
• Burial and final disposition wishes (e.g. cremation).
C. EXECUTION OF YOUR LIVING WILL AND STORAGE AND DISTRIBUTION OF THE DOCUMENT
1. EXECUTION REQUIREMENTS FOR A LIVING WILL You must be mentally competent (i.e. able to understand the document) when you sign your living will. If you are competent but have impaired function (e.g. cannot write), someone may be able to fill in the blanks for you, but no one can create or execute a living will on behalf of another person. The choices must be your own. Once you have completed the living will, you will have to follow your state’s requirements for execution. Most states require either one or two witnesses to verify your signature in their presence or notarization of your signature on the document. Certain persons may be disqualified as witnesses, such as your doctors, nurses, beneficiaries of your estate, and relatives.
2. WHAT TO DO WITH YOUR LIVING WILL Once you have properly executed your living will according to your state’s requirements, you should keep the original document in a safe, but accessible place. Tell someone you trust where it is. You also should provide copies to your regular health care providers and the hospital or care facility when you are admitted. Your health care providers can follow your wishes only if they know them. Because COVID-19 can strike quickly and healthcare systems may be overwhelmed, you may want to make sure some-one you trust has a copy readily available to present to health care providers. If you have a health care durable power of attorney (discussed in II below), you should give a copy of your living will to your agent. Consider also giving copies to family members so they understand your wishes and do not inadvertently interfere with them.
3. IS MY LIVING WILL VALID EVERYWHERE? Each state has laws, forms, and procedures, so it is best to consult an attorney or prepare a new living will if you move from one state to another. Not all states will recognize a living will from another state. The U.S. Supreme Court has ruled that each state has the authority to decide what evidence is “good enough” to determine someone’s wishes about end of life decisions.
D. WHEN A LIVING WILL TAKES EFFECT States may have slightly different laws about when a living will takes effect, but generally, it takes effect only if you are deemed incapacitated and incompetent by at least one doctor and death or a persistent vegetative state is imminent. If you are temporarily incapacitated, the living will does not take effect. For example, if your medical condition does not allow you to speak but you are likely to recover, your doctors cannot invoke the living will. In situations of temporary incapacity, an agent under a health care durable power of attorney (covered in III below) may be able to make decisions for you.
E. CHANGING OR REVOKING YOUR LIVING WILL You have every right to change or revoke your living will if you change your mind about the contents. As long as you remain mentally competent, you can change or revoke your living will at any time. It’s a good idea to review your living will from time to time to make sure it still expresses your wishes. Good times to do so are before you enter the hospital for treatment, when you are diagnosed with a serious condition, and when your marital status changes. State laws typically provide that you can revoke a living will by destroying the original, executing a written document revoking the living will, or executing a new living will that is inconsistent with the old one. The best way to revoke your old living will is by destroying it (e.g. tearing it, striking it with lines, or shredding). Then you can execute a new living will and redistribute it. Be sure to give a copy to everyone to whom you gave a copy of your former living will—your doctors, hospital or care facility, health care agent, and family. Just to make sure there is no confusion about which version of a living will is in effect, your new living will should be dated and state that it revokes all prior living wills.
III. HEALTH CARE DURABLE POWER OF ATTORNEY
A. WHY YOU NEED A HEALTH CARE DURABLE POWER OF ATTORNEY (DPOA) ESPECIALLY DURING THE COVID-19 PANDEMIC A living will is an important document to have, but it has some limitations. A health care durable power of attorney (DPOA) is a legal document that provides more versatility and the ability to appoint a health care agent to speak and act on your behalf. The symptoms of COVID-19 affect people differently. It can strike even a healthy person without warning and the situation can escalate quickly. If you become ill with COVID-19 you might be temporarily incapacitated for a time but then recover. This is the type of situation for which a health care DPOA is designed.
1. WHAT A HEALTH CARE DPOA DOES A health care DPOA allows you to appoint a health care agent or representative to make decisions on your behalf if your condition doesn’t allow you to make your own decisions. The health care DPOA applies to all health care decisions for all types of medical conditions, not just when death is imminent or you are in a vegetative state. It allows you to outline your philosophy as to the types of treatment you want to receive or decline including end of life care. Thus, it is much broader than a living will, which only expresses your desires if you are terminally ill and/or permanently unconscious and are unable to express your wishes regarding the use of life-prolonging procedures.
2. WHO CAN MAKE A HEALTH CARE DPOA? Generally, you must be at least 18 years old to execute a health care DPOA. Additionally, you must be mentally compe-tent to understand what the health care DPOA is, what powers the health care DPOA gives, and the effect of granting such powers to a health care agent.
3. WHY A HEALTH CARE DPOA IS NECESSARY A health care DPOA may be one of the most important legal documents you will ever sign especially during the COVID-19 pandemic. Unfortunately, you never know when you might suddenly need someone to make medical decisions for you. Every year in the United States over 700,000 people have a heart attack and 800,000 suffer a stroke. By early June 2020, the United States had nearly two million confirmed cases of COVID-19 and over 100,000 deaths. Having a health care DPOA allows you to prepare in advance for these kinds of emergencies. The health care DPOA helps ensure that the right person will be making decisions for you and the decisions are consistent with your values and wishes.
4. WHAT HAPPENS WHEN YOU CAN’T MAKE MEDICAL DECISIONS IF YOU DON’T HAVE A HEALTH CARE DPOA Laws vary from state to state. Generally, state laws give family members decision making authority with a spouse having top priority, followed by adult children, parents, adult siblings, and more distant relatives. This makes sense because generally family members are considered to be in the best position to know what treatment decisions you would make for yourself if you were able. However, there is no guarantee that a decision made by a family member won’t cause problems. When stress is high and a loved one’s health hangs in the balance, conflicts among family members are possible. Some family members may make decisions based on ignorance, a desire to end family distress, or downright bad faith and personal motives. Depending on the situation, the most knowledgeable decision-maker may not even be a member of the family. Further, with health care systems overwhelmed by treating COVID-19 patients, there might not be time to figure out who has the authority to make decisions. The health care DOPA eliminates all this uncertainty. For these reasons, it is much better for everyone– you, your healthcare providers, family, and friends if a health care DPOA is in effect. It allows you to choose your decision-maker. Whether you have a health care DPOA or not, you should have conversations with key people in your life about your wishes for medical treatment. Do this for your family and not just yourself. Let them know what you want them to do if the time comes that they must speak for you.
5. WHY YOU NEED A HEALTH CARE DPOA EVEN IF YOU ARE MARRIED By signing a health care DPOA, you help ensure that the right person will be making decisions for you and that you will receive the best and most appropriate health care possible. You should have a health care DPOA even if you are married. If you have a spouse and children from previous relationships or adult children, they may disagree about your treatment or which of them should be the decision-maker. The appointment of the health care agent will reduce conflict in this high-stress situation. If you want to name someone other than your spouse to be the decision-maker, you will need a health care DPOA. Additionally, if you and your spouse are in a simultaneous accident, your health care DPOA can name a successor or alternate health care agent to act on your behalf.
6. WHY YOU NEED BOTH A LIVING WILL AND A DPOA FOR HEALTH CARE Preparing for the unexpected means having the right documents in place. As discussed here, a living will and health care DPOA serve different legal functions. A living will is limited to end of life situations and is used to outline your wishes regarding life-prolonging measures if there’s no reasonable hope of recovery, for example, in the event of brain death, permanent unconsciousness, or terminal illness. A health care DPOA, on the other hand, covers all health care decisions and lasts only as long as you are incapable of making decisions for yourself. It is also the legal document that allows you to appoint a health care agent to act on your behalf. Therefore, it is important to have both documents. Often state forms combine the two in one document.
B. CHOOSING YOUR HEALTH CARE DPOA AGENT
1. WHOM TO CHOOSE The person you name in your health care DPOA and trust with your healthcare decisions is called your health care agent. (Other terms you may encounter are health care surrogate, proxy, or representative.) If you cannot communi-cate or your health prevents you from making decisions, your health care agent will step into your shoes. Your agent will make health care decisions based on what you outline in your health care DPOA, living will, and what he or she understands your wishes to be. Your choice of health care agent is of critical importance. When considering whom to choose, look for someone who:
• Knows you well and is willing to talk to you about sensitive issues, including end of life care.
• Understands your values and wishes, respects them, and will forcefully pursue them despite opposition.
• Is immediately available, reliable, and willing to serve.
• Is articulate and has strong advocacy skills.
• Understands medical issues.
• Can deal with potential family conflicts. Most people choose their spouse, an adult child, or another close adult relative. But your health care agent does not need to be a relative. A trusted friend is a fine choice. If you have named an agent for financial decisions under a financial durable power of attorney, you may want to choose the same person as your health care agent. As a general rule, you may not name any of your doctors or other health care providers or employees of your health care providers or of the hospital or other facility at which you receive care.
2. CHOOSING MORE THAN ONE AGENT OR AN ALTERNATE AGENT Many states allow you to appoint two or more persons to serve as co-health care agents. For most people, appointing co-agents is not a good idea. The agents may disagree, which can confuse health care providers, and delay a crucial decision. The stalemate could even need to be broken by a judge. In most circumstances, the better choice is to name one primary health care agent and one or two successor agents. A successor agent serves only if the first health care agent is unable or refuses to serve. This is ultimately your decision and should be based on your circumstances. WHAT DECISIONS YOUR HEALTH CARE AGENT CAN MAKE You can decide what decisions you want your health care agent to make. You can give your health care agent broad authority to make virtually all health care decisions for you if you are unable to make them for yourself. Or you can limit the agent’s power. Some people limit their agent’s power to the instructions in their living wills. With broad powers, your health care agent will be able to:
• Access your medical records.
• Decide in which medical facilities you will receive care.
• Choose your health care providers.
• Visit you when you are in a hospital or medical facility Consent to or refuse most types of medical and mental health treatment. State law may provide that certain treatments cannot be authorized by your health care agent. These typically include abortion and some extreme mental health treatments. Your agent also cannot authorize treatment or withdrawal of treatment in conflict with your living will. Furthermore, your agent must make your health care decisions according to the agent’s knowledge of your wishes, which is why it’s so important for you to have a candid discussion with him or her. If the agent does not know your wishes, the agent must base the health care decisions on your best interests. So long as you have full confidence in your agent, consider giving him or her broad powers to make decisions for you as it can be difficult to foresee what anyone’s medical needs may be in the future. Giving your agent full authority may reduce the chances of having the issue end up in court.
D. EXECUTING YOUR HEALTH CARE DPOA AND STORING AND DISTRIBUTING THE DOCUMENT
1. EXECUTION REQUIREMENTS FOR A HEALTH CARE DPOA Each state has execution requirements for a completed health care DPOA to become effective. Some states provide a form, the use of which may or may not be mandatory. You will need to verify your specific state requirements and may want to consider seeking counsel or an advocate who can advise you. First, you will want to make sure you complete all the necessary information on the health care DPOA. Next, you want to arrange for execution. Most states require you to sign and date the document in front of either two witnesses or a notary. Certain persons may be disqualified as witnesses such as relatives, beneficiaries of your estate, the person named as your agent, and your health care providers.
2. WHAT TO DO WITH THE EXECUTED DOCUMENT Once you have properly executed your health care DPOA according to your state’s requirements, you should keep the original document in a safe, but accessible place. Tell someone you trust where it is and make sure that person can access it. Provide copies to your regular health care providers, to your agent, and to any alternates. Your agent may need a copy to prove his or her authority to medical personnel. If you are admitted to a hospital or care facility, provide it with a copy as well. During the COVID-19 pandemic when healthcare systems may be overwhelmed, it is also a good idea to have a copy ready to take with you if you need emergency care.
E. WHEN A HEALTH CARE DPOA GOES INTO EFFECT
Your health care DPOA goes into effect when you become unable to make your own health care decisions. Some states may require a doctor to determine that you lack the ability, or “capacity” to make your own health care decisions. Lack-ing capacity usually means
(1) you cannot understand the health care choices that are available to you including the risks, benefits, and alternatives to these choices, or
(2) you are unable to articulate your wishes in any way, including orally, in writing, or through other gestures. What this means is that if you are severely injured or sick and you cannot express your health care wishes, your health care DPOA will immediately take effect. In some states, it is possible to give your health care agent the authority to manage your medical care immediately. In other states, you may have to wait for a doctor to decide. Even if your document provides for your health care agent to immediately dictate your medical care if you lack the ability to do so, your health care agent must always act in your best interests and diligently try to follow any health care wishes you’ve expressed in your health care DPOA and living will.
F. CIRCUMSTANCES UNDER WHICH YOUR HEALTH CARE DPOA MIGHT END
Your executed health care DPOA will remain in effect as long as you are alive unless there is specific action by you or a court. Below are some circumstances in which your health care documents can become ineffective:
You revoke your health care DPOA:
You have the right to amend or revoke your health care DPOA at any time as long as you remain mentally competent. If you revoke your health care DPOA make sure your agent(s) and health care providers know the document has been revoked and is no longer effective.
The court determines your health care DPOA is invalid:
Although very rare, under certain circumstances, the validity of your health care DPOA may be questioned. In these situations, the matter may end up in court to determine the validity of the document. Most judges recognize that a court is normally not the right place to make health care decisions, but sometimes is the most appropriate place to determine the validity of a document. Challenges tend to be more common when family members disagree with choices your health care DPOA outlines, or people have issues with your health care agent. Some reasons a court can rule on your health care DPOA include:
You lacked mental capacity:
If someone doubts that you had the requisite mental capacity at the time you prepared your health care DPOA, that individual can file a motion in court to invalidate your health care DPOA. The person bringing the motion in court bears the burden of proof. This means the law presumes you had the mental capacity and the person filing the case has to prove otherwise.
The execution was improper:
Every state has specific execution requirements for a health care DPOA. If your doc-ument was not properly executed, a court can invalidate it. An example might be if you did not have the document notarized and state law requires notarization for the document to be valid. However, in these situations, your inten-tions outlined in the health care DPOA may still be relevant and used as evidence of what your wishes are. In a United States Supreme Court case, Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990), the Court determined that an improperly executed health care DPOA can be used as strong evidence of someone’s wishes for care and still be honored. In other words, your wishes should not be ignored simply because of a technical error.
Your agent’s authority is revoked:
A health care agent is obligated to make decisions based on your wishes in your health care DPOA. If your health care agent does not act according to your best interests or wishes, any concerned person can ask the court to review the health care agent’s behavior. If a court finds that your agent is acting improperly, it will revoke the agent’s authority. Then, the authority will pass to the alternate agent you named in your document. If your health care DPOA does not name an alternate, a conservator or guardian may be appointed to make health care decisions for you.
A health care DPOA is no longer valid once you die. However, some of the directions or instructions in the document may remain effective after your death for some very limited purposes. For example, your health care agent may be allowed to supervise the disposition of your body, including authorizing an autopsy or organ donation if your health care DPOA gives these powers.
A divorce will not affect the validity of your health care DPOA, but if you named your spouse as your health care agent, his or her authority is automatically revoked in some states. In this circumstance, if you named an alter-nate, he or she will become the agent. However, to avoid confusion, it is best to execute a new health care DPOA. G. CHANGING OR REVOKING YOUR HEALTH CARE DPOA Over time circumstances can change and you may want to change or revoke your health care DPOA. You will need to take an affirmative step to revoke the document, usually physically destroying the actual document and all copies or executing a written revocation. Make sure to check your state’s revocation requirements. Once you revoke your health care DPOA, you should notify your health care agents and your health care providers of the revocation. Additionally executing a new health care DPOA revokes any previous document as long as it so states. Make sure your health care agent and your health care providers are notified and have copies of the new document.
IV. CONCLUSION COVID-19 can strike anyone without warning and the symptoms can escalate quickly. Making sure you have the nec-essary legal documents in place if you require care is an important action item you should not take lightly or delay. Both a living will and a health care durable power of attorney are essential in preparing for the COVID-19 pandemic and any other health situations that might arise. An estate planning attorney can help you get your documents in place promptly. During the pandemic, many attorneys are conducting consultations by phone and video conferencing. An estate planning attorney in your state will be able to advise you on the best way to execute your documents while maintaining social distancing.