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Will your advance care planning be effective amid new restrictions?

by Kelly Gicale | Contributor
June 5, 2020

After hearing stories of those becoming hospitalized due to the COVID-19 pandemic, many Americans have been understandably concerned about the effectiveness of their advance care planning. If you have similarly wondered whether or not your powers of attorney and advance directive will protect you in case of COVID-19 hospitalization, this article will provide information to help you determine if you could benefit from reviewing and updating your documents in light of the new potential risks.

What is advance care planning?

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.

What is an advance directive or living will?

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

What is a power of attorney?

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.

How will COVID-19 affect my advance care planning?

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.

Access to hospitals and other health care facilities is limited

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 directive or living will may not address COVID-19 treatments

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.

Proof of incapacitation may be difficult to get

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.

Concern Why is this an issue? Solution
Guests are not allowed to visit hospitals, rehabilitation centers, and nursing homes The agent usually makes medical decisions in-person, and HIPAA could prevent your doctor from communicating with him or her Consider adding provisions that permit communication of protected health information to your agent and that allow for alternate forms of communication (email, portal, phone, video chat, etc.)
Serious cases of COVID-19 often require use of a ventilator Many advance directive forms only include preferences regarding artificial feeding and resuscitation, not ventilator use Consider specifying in your advance directive whether you allow for ventilator use or prohibit that intervention
Springing powers of attorney require proof of incapacitation If the proof required is a letter form one or more physicians, it could be challenging to obtain that proof quickly enough to take care of unpaid bills, etc. Consider working with your attorney and physician now to set forth more objective measures of incapacity that you would like to be used either generally or just in the case of incapacity due to COVID-19
COVID-19 is a global pandemic affecting everyone, including those who would serve as your agent If your powers of attorney name an agent who lives with you or is at high risk for serious COVID-related complications, he or she may not be able to make decisions for you Review your powers of attorney to see whom you named as your agent and consider revising or adding alternate agents in case your primary choice is unable to serve
Most who have completed their advance care planning did so before COVID-19 Advance care planning documents completed even one year ago may be outdated or drafted based on the assumption that in-person interactions would be available Review your documents and consider revising with your attorney by running through scenarios as if they were to occur today (e.g., Do you need to permit electronic document signing? Allow for automatic electronic payment of bills?)

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at legacyassuranceplan.com.

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Email - info@legacyassuranceplan.com
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