The living will is an integral part of any estate plan. It provides a sense of agency and control at the end of life. It is self-described as a “form [that] may be used to make your wishes known about what medical treatment or other care you would or would not want if you become too sick to speak for yourself.” There has never been an easy or straightforward way in which to deploy a living will, now even more so in the time of COVID-19.
As a hospice chaplain, I have observed, generally speaking, that it is the agent under the Medical Power of Attorney who “enforces” the living will, making sure that the living will becomes available to health care providers. For family members it can be a gift because they no longer have to make the hardest decisions regarding the continuation of care, or not.
How is the coronavirus changing living wills?
In my opinion, COVID-19 has profoundly changed the terrain of living wills. One major component of a living will is when someone is in a “terminal condition”, one has to decide whether they will have none, some, or indefinite life-sustaining procedures. A terminal condition is defined as “an incurable or irreversible condition for which the administration of life-sustaining procedures will serve only to postpone the moment of death.” Life-sustaining procedures are defined as “[A]ny medical procedure or intervention that, if administered to a qualified patient, would serve only to prolong the dying process.” It also includes language regarding artificial hydration and nutrition that is not necessarily relevant here.
So how does COVID-19 change this? Usually, a life-sustaining procedure means that someone is put on a ventilator and but for that ventilator they would die. COVID-19 is a virus that attacks the lungs and treatment for the most serious cases is a ventilator. In many, if not most living wills, the document indicates that someone wants neither none, nor all, but rather some ventilation. Usually, it is 3, 7, or rarely, 14 days. These are relatively short periods of time when treating COVID-19. For instance, my neighbor, a 98-year old man, just spent 30 days on a respirator and recovered.
So there is often a tension between what people have put as their wishes on their living will and the unusually long period (in many cases) of ventilation when diagnosed with COVID-19. There is no easy solution. For myself and my clients, I am systematically revisiting the issue to make sure that what is in their living will reflects the new terrain and treatment of COVID-19.
If you would like to revisit your existing living will, or write one, please call me on 720 457 4573 or email me at kate@rockymtnelderlaw.com.
