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Living Wills, Medical Powers of Attorney, and Other Advance Directives in the Age of COVID-19

Michael A Kirtland


  • Advance Care Directives: Complete medical power of attorney and living will documents in advance to authorize a trusted individual to make medical decisions on your behalf and express your treatment preferences.
  • Facilitate Family Discussions: Have open conversations with loved ones about your medical preferences in case of life-threatening situations. Well-informed family members provide valuable input to medical professionals.
  • Prepare a Hospital "Go Kit": Assemble necessary documents, including copies of advance directives, medical insurance information, medication lists, and contact details. Be proactive in organizing essential items for potential hospital admissions.
Living Wills, Medical Powers of Attorney, and Other Advance Directives in the Age of COVID-19

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Planning in advance for medical emergencies has always been an important subject. Unfortunately, it is also often put off as an uncomfortable subject, one people do not wish to consider and therefore avoid. But, in the age of COVID-19, with over half a million American deaths and hundreds of thousands of hospitalizations from COVID-19, planning in advance is now more important than ever. What can you do to be prepared for the possibility of COVID-19 related hospitalization of yourself or a loved one?

April 16, 2021, is National Health Care Decisions Day (NHCDD). In many communities, this has been expanded to become National Health Care Decisions Week or even National Health Care Decisions Month. Some simple steps can be taken to be prepared for an emergency. NHCDD was created in 2008 to aid in the expansion of the number of individuals who have advance care directives in place. Historically, powers of attorney, living wills, and last wills and testaments are executed by only about one-third of the population. This has been so despite the best efforts of legal and health care professionals to increase the percentage of the population that prepares for such medical emergencies.

Typically, in the event of hospitalization, the hospitalized individual would complete medical powers of attorney and living wills upon being admitted to the hospital. In fact, it is federal law to require the hospital admissions process to include asking the patient whether or not they have a living will or a medical power of attorney, though no such documents are required for being admitted. For routine admissions for surgery, the process of completing medical powers of attorney and living wills upon admission works sufficiently well. But, in emergencies, such as admission for COVID-19, it is not unusual for the seriously ill patient to be unable to complete such documents due to their extreme medical distress. While most states have a medical proxy process to cover such situations, more often than not the family members have little or no idea what the critically ill loved one wishes for their medical treatment.  Having a sometimes difficult, but nevertheless important, conversation with your loved ones can help resolve this problem.

With COVID-19 being highly contagious, medical isolation is routinely practiced, making it extremely difficult to execute medical directives once the COVID-19 patient is admitted to the hospital. Different states have come up with attempted solutions to this situation, from remote execution and notarization procedures for advance directives, to waivers of execution formalities in other states. However, the best solution remains having completed such documents in advance, without the added stress and urgency of an emergency hospital admission.

So what should you do? The steps are fairly simple. Complete a medical power of attorney, which authorizes a medical power of attorney agent to make medical decisions on your behalf in the event you’re not able to make your own medical decisions due to your medical distress or mental incapacity. You should also appoint a successor or alternate agent in the event your primary choice to speak for you is unavailable to do so. Such a document can provide as much specific medical information as you wish, or can be a fairly short, simple, document authorizing your agent to make decisions for you.

Second, complete a living will. These documents go by a variety of names in individual states, though typically they are referred to as a living will. This document allows you to express your preferences, in an advance writing, as to how you do or do not wish to be treated in the event you are terminally ill, and typically also if you enter a persistent vegetative state. Among the 50 states, the specific validity requirements for a living will vary widely. The Senior Lawyers Division has just published a book on this subject, entitled Getting Started with Advance Directives. (Available on the Senior Lawyers Division website.) Some states are fairly flexible as to the format for a living will, allowing individual directives to be added and providing a wide variety of choices. Other states have strict requirements for what may or may not be permitted in a living will. This book contains information on the current requirements for a valid living will, as well as providing examples of living wills from each of the 50 states. The book also provides information on other types of advance directives, as well as information on how various religious beliefs impact the drafting of living wills.

Third, and in many ways most importantly, have a conversation with your close loved ones concerning how you feel about medical treatment in the event your illness is life-threatening. Experience has taught us that the people who receive the medical treatment most closely associated with their personal preferences happen when not only has the patient done a medical power of attorney, but that person also has had a direct conversation with their agent under medical power of attorney, and their other close loved ones, concerning how they feel about medical treatment in extreme medical situations such as COVID-19 hospitalizations. Well-informed and involved family, who know and understand your preferences and beliefs about life-threatening situations, provide the best input to medical professionals who can then better carry out your medical wishes.

Starting such a discussion can be difficult. For some, having a neutral party to facilitate the discussion can be helpful. A medical or legal professional who deals with this subject can provide informed input into the conversation and be available to provide information and guidance. But, the discussion really needs to be between the individual, his or her family, and the medical agent. It involves highly personal decisions and beliefs concerning end-of-life questions. COVID-19 has placed many families in the difficult position concerning when to “let go” of the COVID-19 patient, usually in a situation where the family cannot physically be present with the COVID-19 victim, and where the patient is beyond the point where they can assist the decision making process by providing input. Making an end-of-life decision is often the most difficult decision family members will ever have to make. By having such discussions in advance of an emergency, the family is provided with the solace that what they are advising the medical professionals is consistent with the patient’s known wishes and beliefs.

One practical step that families can take in advance is to prepare a hospital “go kit.” In this kit, the individual can place useful documents and other necessary items so that, in the event they do need to be admitted to the hospital intensive care unit or emergency room, those items are gathered in advance of need. Certainly, copies of the medical power of attorney and living will should be included in this kit. Utilizing the kit to keep other medical information is useful as well. Medical insurance information, including insurance provider, account numbers, and contact information can be especially useful during the admissions process, and is often overlooked by the family in the rush to get to the hospital. A list of medications the individual needs, including the name of the medications, the dosage and frequency taken, and a list of medications to which the patient is allergic are equally useful. Contact information for relatives, the individual’s doctor’s name and contact information, and perhaps the name and contact information for the individual’s minister as well. Other items that might be included are glasses and hearing aids if those are needed.

For COVID-19 specifically, the Centers for Disease Control has provided specific advice on what can help prevent developing COVID-19. While, unfortunately, such advice has sometimes been viewed with suspicion due to the infusion of political rhetoric, the medical advice is consistent. Wearing masks helps prevent both exposure to COVID-19 germs and decreases the potential for an individual who does not yet know they are infected from spreading the disease. Maintaining social distancing is important as well. Not exposing oneself to persons whom you do not know is also useful. Maintaining a small social circle of individuals to whom you are exposed and ensuring as little physical interaction with individuals not in that social circle helps as well. Because of the incubation period for the disease, it is highly possible for a person to spread COVID-19 to others without realizing they are already infected and contagious. As a result, you may not see the individual as a medical threat, yet you can still become infected.

The internet has become a valuable tool during the COVID-19 pandemic. Do your own research on the subject of COVID-19 and on advance directives, as well as National Health Care Decisions Day. Trust well-known and respected sources, such as the US Department of Health and Human Services, the Centers for Disease Control, and your state’s Health Department. But remember, if you’ve never heard of the source, it may be incorrect, even if well-intended. Being prepared is far better than being sorry later.