Reevaluating health care power of attorney and living will in a pandemic

AUTHOR’S NOTE:

It is with a very heavy heart that I inform you that, following a long battle, Kathleen M. Martin, Esquire, passed away on Sunday, June 28th, surrounded by her loving family. Kathy was an esteemed and respected member of the Montgomery County and state-wide legal community, and a leader in Elder Law, as one of the first Certified Elder Law Attorneys in Pennsylvania. She also made a tremendous impact locally with her involvement in so many community organizations, such as Girl Scouts, YWCA, Berks Visiting Nurses, TCN Network, the Chester County Night School, and many more. Beyond that, Kathy very much enjoyed writing her biweekly column “Legal Ease.” I considered Kathy not only a colleague, but a mentor and a friend. I am honored to continue her column. I hope that I will make her proud as I continue to write about elder law and estate planning topics which were so dear to her heart.

The pandemic has impacted all areas of our lives. In light of the coronavirus you should reevaluate some elements of your Living Will and Health Care Power of Attorney. The language in some Living Will and Health Care Power of

Attorney documents that may be fine under normal conditions may cause additional problems for you and your loved ones if you fall ill during the pandemic.

A health care power of attorney allows you to appoint someone else to act as your agent for medical decisions. It will ensure that your medical treatment instructions are carried out. Typically, the person who is appointed to act as your agent would confer with the doctors in person. That will likely be impossible during the coronavirus pandemic because family members often are not allowed in the hospital with sick patients. You should consider having a provision added in your document that expressly allows your agent to communicate electronically with your health care providers. Additionally, you should have your estate planning documents in an electronic format and provide that to your agents. Having your health care power of attorney and living will in an electronic format will allow your agent to easily provide the document to the necessary health care providers.

A living will is a document that you can use to give instructions regarding treatment if you become terminally ill or are permanently unconscious and unable to communicate your own wishes. The living will provides under what conditions life-sustaining treatment should be withdrawn.

Many living wills contain a prohibition on intubation, which can be used to prolong life. However, in the case of Covid-19, intubation and placement on a ventilator can actually save a patient’s life. Because a living will is only legally effective if a doctor determines that you have a terminal condition, in most cases a ventilator would not be withheld if you were diagnosed with COVID-19. However, if your living will contains a blanket prohibition on intubation, you may want to rethink that.

If you have any questions, or require assistance, contact the elder law team at OWM Law at 610-323-2800, or email Rebecca Hobbs, CELA© at rhobbs@owmlaw.com. The legal advice in this column is general in nature, consult your attorney for advice to fit your particular situation.