By Landon Hodges, Esq.
In these unusual days of COVID-19, working from home, and avoiding social contact, one particular medical device is receiving much more attention than normal: the ventilator. Essentially, a ventilator is a machine that can breathe for you by forcing oxygen into the lungs and pulling it out again if you are unable to do it on your own. As a respiratory illness, several patients suffering from COVID-19 require the use of a ventilator for treatment.
It is common language in a Living Will that, in the event your Living Will is activated, you do not want to be put on a ventilator and want to be allowed to pass away naturally. One question that immediately comes to mind with all the talk about ventilators in the news is “does this language prevent my doctor from using a ventilator to treat me if I have COVID-19 symptoms?” The short answer is that this language in your Living Will will not, in almost all cases, prevent your doctor from using a ventilator to treat you for COVID-19.
For those of you who may not be familiar with Living Wills, a Living Will is an estate planning document that allows you to express your wishes concerning the treatment you will receive during end-of-life care. Some Living Wills appoint an agent, similar to a power of attorney, who has the authority to make the ultimate decisions concerning your end-of-life care, while others do not appoint an agent and state that the physician must adhere to the decisions you have described in the document. The operative term to note when determining whether or not terms in your Living Will will apply to a situation is “end-of-life care.
In most cases, in order for your Living Will to be activated, three facts have to exist: (1) your attending physician my agree that you are terminally ill, (2) you are in a persistent vegetative state or an irreversible coma, and (3) your attending physician concludes that there is no realistic hope of recovery from this condition and death is imminent if life-sustaining measures are not taken. Note that, as with all legal documents, every Living Will is governed by its own terms, so be sure to review your own Living Will to ensure you are comfortable with its terms and standards. If you do not have a Living Will or have questions or concerns about your existing one, you should contact an elder law attorney for assistance.
In some cases, you will see Living Will terms within the same document as your general Health Care Power of Attorney (also known as an Advance Health Care Directive). While this makes it impossible to prevent the attending physician from seeing your end-of-life treatment preferences before the time comes to use them, all physicians should be aware of this standard and should not look at your Living Will provisions unless life-sustaining measures are necessary. If you are concerned about this, Pennsylvania law does allow for Living Wills to exists as a document separate from your general Health Care Power of Attorney. If your current health care directive is a combined document and you would like to recognize the different standards at which these terms are activated and divide them into separate documents, contact an elder law attorney.
Now, putting that standard into the context of COVID-19, a doctor should not be looking at your Living Will unless all prongs of the above-described standard are met. If your attending physician believes that there is even a fighting chance that you can recover from your current condition, your Living Will is not activated and you should be able to receive ventilator treatments, even if your Living Will expressly says that you do not want these treatments. For example, even if you are terminally ill, unconscious, and have been diagnosed with COVID-19, your Living Will terms will not be activated if the doctor thinks that, through the use of a ventilator, there is a chance you will make a significant recovery.
Living Wills are important documents to have in your estate planning portfolio. With all the talk about ventilators these days, rest easy knowing that you will not be denied any treatments that may allow you to make a significant recovery, regardless of the language in your Living Will.
Steinbacher, Goodall & Yurchak assists its clients in the development of Living Wills, Health Care Powers of Attorney, and many other parts of estate planning and long-term care planning. We continue to offer free consultations, and during this time of social distancing, we are offering them via video or phone. Call us at 1-800-351-8334 to schedule a free consultation. We are also offering a FREE Health Care Power of Attorney to any resident of Pennsylvania!