Will your advance care planning be effective amid new restrictions?

Advance care planning refers to the process of making and documenting your wishes regarding medical intervention and financial and health care decision-making before a potential a medical crisis occurs. Typically, a person who completes her advance care planning will work with an attorney to create an advance directive (or living will) and prepare the appropriate powers of attorney to set forth their wishes regarding medical treatments and who can make decisions on their behalf.

An advance directive, or living will, is a legal document where you can provide your medical care preferences. By completing an advance directive, you can clearly communicate and document your wishes regarding medical procedures and therapies such as:

• Life-sustaining treatments, like CPR
• Artificial nutrition and hydration, including tube feeding and IV fluids
• Comfort care, or pain management
• Ventilator use, an intervention that is even more likely today because of COVID-19

A power of attorney is a legal document that allows someone (an “agent”) to act on another person's behalf. In the context of advance care planning, the most common kind used is a durable medical power of attorney, which provides the agent with authority to make health care decisions on another person's behalf. This type of power of attorney becomes effective as soon as it is signed, and it is “durable” because the decision-making authority continues even if the person becomes incapacitated. So, with a durable medical power of attorney, you can allow someone else to make medical decisions for you now and in the event of incapacitation.

Conversely, a springing medical power of attorney only comes into effect once a person is incapacitated or otherwise unable to make decisions. So, this kind of power of attorney does not allow the agent to make medical decisions for you unless you are incapacitated and only during the time of incapacitation.

Those examples relate to health care decisions, but advance care planning involves thinking ahead about financial decisions as well. A general power of attorney that grants financial and legal decision-making to another person similarly becomes effective as soon as it is signed. In the context of advance care planning, a springing power of attorney is commonly used to ensure that someone can pay hospital bills, etc. on your behalf if you are unable to do so.

If you already have your advance directive and powers of attorney in place, congratulations! You have taken important steps to protect yourself in case of serious illness or incapacitation. However, before you celebrate too much, you likely will want to review and potentially update these essential documents as a result of new concerns stemming from the COVID-19 pandemic.

Hospitals, rehabilitation centers, nursing homes and other health care facilities now have severe restrictions in place when it comes to visitors. Before this crisis, a person serving as an agent usually made medical decisions in the room with their loved one or friend. If your agent is not permitted to enter the hospital and HIPAA prevents doctors, medical staff and pharmacies from communicating with them, how will they make decisions on your behalf?

One option to consider is adding language that expressly allows communication of protected health information to your agent so that there is no question about their right to receive the information necessary to make decisions for you. In addition, you may want to add a provision expanding the kind of communication methods permissible to include phone, email, patient portal or video chat.

Advance directives almost always address life-sustaining treatments and artificial nutrition/hydration, because those situations are most commonly thought of when embarking on advance care planning. However, we now know that serious cases of COVID-19 often call for the use of a ventilator, a machine that essentially breathes for the patient. In reviewing your advance directive or living will, determine whether or not it addresses the use of a ventilator. If not, you likely will want to update it to include your preferences either way.

If you have springing powers of attorney that only go into effect once you are incapacitated, it may be more challenging for your agent to quickly act on your behalf during this time. In many cases, the power of attorney does not specify what kind of proof is needed to show incapacitation, and in those that do, the required proof is usually a written statement by the regular attending physician. In some, the written statement must be “delivered” to the agent before the power can take effect.

Especially in hospitals with many COVID-19 patients, this requirement could cause lengthy delays for an agent who needs the authority to make urgent medical decisions. When reviewing your powers of attorney, pay close attention to the language regarding proof of incapacitation. First, is there any language for this? If not, consider working with your attorney to add provisions stating the kind of proof you would be comfortable requiring. If your power of attorney does address proof of incapacitation, you might consider working with your attorney and trusted health care provider to include objective standards of incapacitation in lieu of a written statement by the physician. Or, if you still prefer to have a physician making that judgment, you may want to expand on the permissible ways for him or her to communicate that statement to your agent (email, phone, etc.).

Regardless of whether you are considering advance care planning for the first time or reviewing your documents, new concerns related to COVID-19 require us all to be smart about how we plan ahead. By taking the time to consider these new restrictions and address the potential scenarios that could arise, you can have peace of mind knowing your health care and financial decisions will handled exactly as you wish.