Recently, I got asked an interesting question from one of my clients…
Steve —
Do you feel that our existing HCPAs adequately cover the care needed and decision power needed by an Agent in the situation where either my spouse or I were to contract COVID-19?
Or do we need to make any changes?
Answer:
The forms have not changed from a legal perspective, but the environment in which the decisions are being made has.
There are two powers under your current documents:
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- A “living will” that directs the doctor to withhold life sustaining procedures if you are in a “persistent vegetative state” (whatever that means under the circumstances and certainly open for interpretation).
- The living will differs dramatically from a health care power of attorney (“HCPA”). Your agent designated on your HCPA is assumed to know what your wishes are and, in other environments, actively involved so that they may make decisions “on the front lines” while in direct communication with the doctor. One concern I have is for a named health care agent’s ability to effectively communicate a principal’s wishes in an environment that restricts access. Your agents power then becomes ineffective and all we can rely upon is your “imperfect” living will advance directives.
If you are admitted, you may wish to have you or your health care agent seek a “do not resuscitate order” (“DNR”) but these present situations where there is no grey area that a health care agent would otherwise get involved in, especially with restricted access.
A distinct and detailed living will may be appropriate under the COVID-19 environment, one that gives better and more detailed “advance directives” to doctors if the health care agent is not accessible under the circumstances. A good conversation with your health care agent is crucial at this time, with the agent taking notes and asking follow-up questions. Obviously, the trick is to assess what your health care wishes are.
Please visit https://theconversationproject.org/ which has put together a whole set of discussions on these issues.
If you feel more direction is needed to ensure your goals are met, it may be smart to have a specialized COVID-19 HCPA in these trying times. When the threat diminishes, I would prefer going back to a more generalized document because I do not want doctors trying to interpret words which are often imperfect (i.e., “persistent vegetative state”), especially when your agent is trying to convey a more recently expressed desire or wish which may make the detailed directions ambiguous or no longer relevant.
Final advice, be prepared to have electronic devises for video conferencing ready to use, charged & chargeable and practice the video apps now so that you may be ready in unfortunate circumstances.
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