I have received several questions from clients over the past few weeks about whether they should revoke their living will or amend it to specifically address their wishes if they were to be diagnosed with COVID-19 and require mechanical ventilation. Most often, it turns out that their question is really this: Will my living will prevent me from being placed on a ventilator if it states that I do not want mechanical ventilation, but I am diagnosed with COVID-19 and my doctor recommends a ventilator?
The short answer is no, your living will probably will not prevent you from being put on a ventilator in this situation. The living will portion of your Durable Health Care Power of Attorney identifies two, and only two, scenarios in which the direction to withhold or withdraw life-sustaining measures (including mechanical ventilation) could come into play:
- You have an end-stage medical condition which will result in death, despite the introduction or continuation of medical treatment, or
- You are permanently unconscious (such as an irreversible vegetative state), AND there is no realistic hope of recovery.
With respect to the first scenario, your attending physician will make the determination about whether your condition is end-stage, but the legislature has defined “end-stage medical condition” as “an incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness that will . . . result in death, despite the introduction or continuation of medical treatment.” While I am not a medical doctor, it would seem that being diagnosed with COVID-19, in and of itself, is not an end-stage medical condition, and therefore, would not prevent you from being placed on a ventilator if your doctor recommends it.
The second scenario is even less likely to be an issue with COVID-19 because it presumes that you are in an irreversible vegetative state or coma, which is not typically the case with COVID-19 patients who need ventilation. Even assuming that you were in such a state, your attending physician would still have to conclude that there is no realistic hope of recovery before the direction to withhold mechanical ventilation could become effective.
What Does This Mean For You? If you already have a living will, you do not need to be concerned that it will prevent you from being placed on a ventilator if you are diagnosed with COVID-19. However, you should review your Durable Health Care Power of Attorney and Living Will to make sure that it names the individuals you want to make health care decisions for you and that it accurately reflects your wishes for treatment.
If you have questions about this or any other estate planning matter, please contact Grace Nguyen Bond at firstname.lastname@example.org or 717-509-7226.
**This update is provided for informational purposes only and should not be construed as legal advice or as creating an attorney-client relationship where one does not already exist. This article was published on May 1, 2020. Please be aware that the laws and regulations related to the COVID-19 pandemic are being updated rapidly. Please check back or contact us for the most up-to-date information.**