Coronavirus Estate Planning: Now is the Time to Make a Living Will & Medical Power of Attorney

With COVID-19 looming, make sure your loved ones understand your wishes for health care.

By now we're well aware of the tragic health outcomes that may result from infection with the novel coronavirus (COVID-19): life-threatening respiratory conditions, extended hospitalization, and the chaos of trying to get medical care from a strained health care system. Given the dangers of this coronavirus pandemic, it’s wise to make sure you have up-to-date health care directives—that is, a living will, durable power of attorney for health care, or advance directive, depending on the term your state uses.

Which Health Care Documents Do You Need?

At minimum, your coronavirus preparations should include the two basic documents that describe your wishes for medical care: a living will and a durable power of attorney for health care. Many states combine a living will and medical power of attorney into a single form—usually called an advance directive.

A living will is the written record of the type of treatments you do or don’t want to receive if you become so ill that you can’t speak for yourself. Many states simply call these your health care instructions.

A durable power of attorney for health care or medical power of attorney names a trusted person to be your health care agent. If you are unable to communicate your own wishes, your agent will communicate with your doctors for you.

To learn more about these documents and how to prepare them, see the Living Wills & Medical Powers of Attorney section of Nolo.com.

If You Already Have a Health Care Document: Is It Current?

If you’ve already made an advance directive but haven’t laid eyes on it for a few years, now’s a good time to make sure it still matches your circumstances and wishes. For example, do you still want the health care agent you named? Has your health changed in ways that might affect your instructions? Are your values still the same?

Even if your wishes haven’t changed, if it’s been five or more years since you made your document, you may want to draft a new one. The health care providers tasked with following your instructions will be more confident doing so if the form was made within the past few years; that leaves less room for doubt that the form reflects what you would want today.

Finally, consider whether enough people know about your advance directive. At minimum, be sure your health care agent has a copy. You may also want to send a copy to the doctors and medical facilities in which you would be most likely to receive treatment.

Living Wills and Medical Powers of Attorney in the Time of Coronavirus

Any comprehensive advance directive form—whether you complete it with the help of an attorney or a good self-help resource—should cover what you need at this time, though there are a few important issues to consider in light of the COVID-19 crisis.

Making sure your health care agent can communicate with doctors. Most advance directive forms let you give your health care agent broad authority to communicate with your health care providers. Though in-person conversations are common, there’s no your agent couldn’t communicate with doctors over the phone or by email in situations requiring physical distance. To make this extra clear, however, you could amend your document to explicitly say that it’s okay for your agent to communicate with your health care providers by phone, email, video conferencing, or similar methods.

Expressing your wishes regarding intubation and a ventilator. In the most severe cases of COVID-19, intubation—providing oxygen to a patient through a tube attached to a ventilator—may be necessary. But what happens if you’ve made an advance directive stating that you don’t want to be intubated? In that case, technically speaking, doctors shouldn’t withhold a ventilator if you have COVID-19 unless they believe you have no hope of recovering. That’s because health care instructions like these become legally effective only if doctors determine you have a terminal condition—one that can’t be cured or reversed by treatment.

That said, it’s difficult to know exactly how a traditional advance directive form will be interpreted or implemented during a pandemic like this one. Hour by hour, medical professionals are making difficult and uncertain choices for patients in severe respiratory distress. Even if doctors know a patient has made an advance directive, they may struggle to assess whether or not that patient can recover or whether the patient would want to be put through extensive and invasive procedures for a slim chance at regaining their previous quality of life.

Keeping this in mind, it’s wise to take a couple of steps regarding your health care instructions: First, review your advance directive’s language with the coronavirus in mind. Be sure you understand what your document says and that it accurately reflects your wishes. Supplement your instructions as needed.

For example, if you feel concerned that you will contract COVID-19 and doctors would withhold a ventilator when you want one—perhaps in the scenario where there aren't enough ventilators to go around—add a note to your document saying so. On the other hand, if you don’t want doctors to intubate you or keep you on life support if they feel you are unlikely to recover or that your quality of life would be severely compromised by the virus, say so explicitly.

Second, but perhaps even more important, talk to your health care agent and those closest to you about your wishes. This may be difficult to do, but it’s essential. To help you frame the issues for this conversation, you may find it helpful to read What You Should Know Before You Need a Ventilator, a doctor’s sobering article about the potential health consequences of COVID-19.

Finding witnesses or a notary public. Making sure your documents are legally binding could be tricky during this time of social distancing. Every state has different rules about how to finalize health care directives. Besides signing the document yourself, you must also have your document witnessed or notarized—in some states both. And you can’t have just anyone witness your documents: Many states prohibit both relatives and your health care providers from serving as witnesses. So how can others sign your documents while abiding by guidelines for social distancing?

First, it may be reassuring to remember that, as far as your health care instructions are concerned, you have a constitutional right to direct your own medical care. If health care providers have “clear and convincing evidence” of your wishes, they are duty-bound to follow those wishes to the extent they are reasonably able to do so, whether or not you provide your instructions in a witnessed or notarized document.

It’s far better than nothing to simply write down what you want, as discussed above, and make sure your doctors and those who are close to you know your feelings. If there’s no squabbling among your closest family members—those who would be legally entitled to speak for you—your wishes are likely to be respected.

Second, depending on your state, there may be both practical and creative ways to solve the problem of making your documents legal. For more, see Notarizing and Witnessing Legal Documents During the Coronavirus Crisis.

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