A few months ago, around the start of the COVID-19 coronavirus pandemic, I wrote an article providing the three (3) most important legal and financial actions to take to get your affairs in order in case something happened to you. One such recommended action was preparing your advance health care directives.
Health care directives let you decide who is permitted to make health care decisions on your behalf and what type of medical care you want to receive.
Just as you have an opinion on either side of the mask debate, in the event you get sick with COVID-19, you should have a say on what type of medical care you receive.
Currently, South Florida has become an epicenter of the COVID-19 coronavirus. Because virus is so contagious, loved ones and family members of sick patients are not able to accompany them to the hospital. That is why the need for advance health care directives is more important than ever.
Put your health care directives in writing.
Whether or not you believe the seriousness of the COVID-19 coronavirus, your risk of contracting it, or the potential for serious health effects, you need to consider how you want to be medically treated if something should contract coronavirus (or any other serious virus/disease/illness/injury).
Simply telling your loved ones how you want to be medically treated if you are hospitalized with coronavirus is not enough. When the time comes to make a medical decision, if your wishes are not in writing, your loved ones can direct your doctors to perform procedures you may not want! But, if your health care directives are in writing, then your loved ones and your doctors know the kind of medical care you will allow.
This is especially important when it comes to intubation and/or ventilation following hospitalization from COVID-19. If being intubated or being put on a ventilator are not something you desire for non-COVID related illness or medical peril, does that still hold true if you are placed in intensive care with COVID? Your health care directives should address this one way or another.
Make sure your advance health care directives are clear.
The documents that make up advance health care directives generally include: (i) a living will; (ii) health care power of attorney (known in Florida as a “designation of health care surrogate”); (iii) health/medical information release forms (HIPAA authorization forms); and (iv) a uniform organ donation form. Together, these documents allow a person to plan ahead for their own health care in the event they cannot make their own decisions for whatever reason.
Below are a few questions to ask yourself about your current directives, or when creating new ones:
Do your Health Care Directives name the people you would want to act on your behalf?
Yes, “PEOPLE”, not “person.” You should absolutely have at least one, if not two, people named after your primary first choice decision-maker.
Do your Health Care Directives list your agents’ current, up to date cell phone number?
You want to make sure they can be reached, if needed. Including a phone number is minimum. Your directives may also contain your agents’ email and mailing addresses.
Are your health care agents also listed on a HIPAA Release?
If someone you have named wants to talk to your doctor, you want the information to flow freely, unimpaired by legal restraint. A HIPAA authorization document gives your health care agent the right to request and receive your medical records.
Does your Living Will provide that you should not be intubated or put on a ventilator?
Many standard Living Will forms include absolute prohibition of intubation. Intubation may be necessary to treat coronavirus through a ventilator because it is a lower respiratory tract infection. If your Living Will provides for no intubation, you may want to consider adding in this language:
“Despite anything to the contrary in this document, if necessary due to Coronavirus or any other respiratory infection, I DO want intubation, ventilation, and all other life-saving measures.”
Please note that those life-saving measures could include medications that you would not normally take, so consider whether you want to include any sort of a limitation on certain drugs, even if it could put your life at risk.
Moreover, if you are absolutely against being ventilated and/or intubated, then you will not want to include any language to the contrary.
Does your Designation of Health Care Surrogate allow authorization to account for hospital lockdowns?
Typically, your health care agent would have authorization in hand and present the form to your medical professionals. Given current COVID-19 coronavirus pandemic restrictions, and refused entry of patient’s loved ones at most hospitals, that may not be possible. Consider updating your Designation of Health Care Surrogate as follows:
“I expressly authorize my Agent to communicate decisions to any medical provider verbally, in person, by telephone, via email, via web conference including but not limited such services as Skype, Zoom, FaceTime, or in any other manner appropriate to the circumstances. Further, I expressly hold harmless any medical provider for relying on such communications of decisions and directions by my Agent. The express purpose of this provision is to foster decision making by my Agent in remote or indirect manners that may be necessary or advisable given whatever circumstances accompany such decision making.”
As with any legal documents, it is best to consult with an experience lawyer rather than going it alone.
All of my estate planning packages include, at no extra charge, a set of advance health care directives. I also offer a standalone set of advance health care directives for those individuals that do not want a comprehensive estate planning package. In addition to the general health care documents listed above, my advance health care directives include an authorization and direction for disposition of remains, which allows you to provide directions for either a burial or cremation.
If you have any questions about advance health care directives or about any other estate planning tools, please contact me today. If you want to create your own advance health care directives with my easy-to-use virtual estate planning form builder, you can do that, too (p.s., I still draft your documents, not an automated non-lawyer robot).
Stay positive. Stay informed. Stay safe.