Despite the stress and uncertainty caused by the COVID-19 pandemic, there is a certain peace of mind in directing what will happen to you if you are unable to make your health care decisions known if you are ever in that situation. It is also a great kindness to your family to let them know by living wills or advance directives what you want to happen so that they don't have to agonize about what you might want them to do. Especially during this uncertain time, each of us should make our wishes known.
Any lawyer will tell you that you should have a will. A will determines how your property is disposed of upon your death. If you have minor children, you can also set up trusts and designate guardians for them. But no estate plan is complete without direction concerning your health care should you become unable to make health care decisions for yourself.
You might be too seriously injured to respond coherently, or you might be in a coma. You might be in the intensive-care unit and perhaps even on a ventilator. What would you want your family to do in that situation? Advance directives, coupled with medical powers of attorney, can provide direction to your family.
Advance directives are documents executed under the laws of the state in which you reside. For that reason, the terminology varies among the states. Sometimes, they are called living wills. In my state of Texas, they are entitled “Directive to Physicians and Family or Surrogates.” We'll stick with advance directives.
Regardless of the name of the document, advance directives express your wishes about what should happen to you should you become unable to state your wishes.
By way of example, in Texas, advance directives permit you to make choices in two situations about what should happen to you. The two situations come about if, in the judgment of your physician:
- You are suffering from a terminal condition from which you are expected to die within six months, even with available life-sustaining treatment.
- You have an irreversible condition such that you cannot care for yourself or make decisions for yourself and are expected to die without life-sustaining treatment.
In both situations, advance directives allow you to request withholding of all treatments other than those needed to keep you comfortable and to allow you to die as gently as possible.
In addition, advance directives further allow you to make requests about treatments you do or do not want to have in specific circumstances. These treatments include, for example, artificially administered nutrition and hydration or intravenous antibiotics.
Texas' form encourages you to consult with your physician about your condition and your options well before anything might happen to you. When you are satisfied with how your wishes are expressed, you must sign advance directives before two witnesses. Notarization is not required.
Advance directives tell the doctors what you want to happen if you are unable to tell them, but you should also have a document that more broadly vests your health care decisions in another person if you cannot make them. In Texas, that document is called a medical power of attorney, and it's another vital document to have prepared in this age of the COVID-19 pandemic.
This power of attorney gives the person you select (your “agent”) the power to make “any and all” health care decisions for you if you can't make them for yourself. It takes effect if your physician certifies in writing that you are unable to make your own health care decisions. You can, if you want, impose restrictions or make exceptions about what your agent may and may not decide. By statute, you may not delegate the power to submit to voluntary inpatient mental health services or choose convulsive treatment, psychosurgery or abortion. There is a form that may be used for this document as well. Unlike advance directives, the document must be signed either before a notary or two witnesses.
Recognizing the inherent potential conflicts of interest in granting the power of making health care decisions to another person, the law excludes certain persons from acting as a witness to the signing of a medical power of attorney. They are:
- Your agent
- A blood relative or in-law
- A beneficiary of your will
- Your physician
- An employee of your physician
- An employee of your health care facility
- A person who has a claim against any part of your estate after your death
Texas uses two documents - advance directives and medical powers of attorney - to cover health care decisions. In most states, these decisions are consolidated into one document, often called simply a “living will.”
To facilitate deciding what should happen if you are unable to express your own wishes, the American Bar Association teamed up with a nonprofit called Five Wishes to draft a booklet designed to serve as a living will. The Five Wishes you set out are:
- The person I want to make health care decisions for me when I can't make them for myself
- My wish for the kind of medical treatment I want or don't want
- My wish for how comfortable I want to be
- My wish for how I want people to treat me
- My wish for what I want my loved ones to know
There is a very important caveat to using the Five Wishes booklet. The booklet might, or might not, constitute a living will in your state. In other words, you might need an additional document to make the Five Wishes booklets legally binding as living wills or advance directives. Texas is one of those states.
Individuals can give their physicians advance directives about whether they want to have life-sustaining treatment even though they are fatally ill. They can also designate someone to make health-care decisions for them. Sometimes, this requires two different documents. Other times, only one document, such as the Five Wishes booklet, will be necessary. It is critical that you consult an attorney in your state to make sure of the documents you need.