Will Normal Advanced Directives be Sufficient for COVID-19?

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Holland & Hart - Fiduciary Law Blog

While we deal with an unprecedented global pandemic which alters life as we know it for all of us, COVID-19 brings up concerns regarding our clients’ Advanced Directives that were prepared and signed during “normal” times. 

When thinking about being in a terminal or a persistent vegetative state, a client may have filled out a form with a prohibition against “excessive” medical treatments, such as being intubated using breathing machines, respirators, or ventilators.  If that same client contracts COVID-19, intubation may be a life-saving treatment and one that the client would want to have available to him or her. 

Another COVID-19 consideration is permitting experimental medical treatments.  Many form documents actually prohibit experimental, or non-traditional, medical treatments.  The drug Remdesivir, that is being utilized for COVID-19 patients, along with other drugs and types of treatments for the illness, would likely be considered experimental.  It may also be a good idea to consent in the document to the use of any medication that may help facilitate recovery from this virus and authorize the agent to sign any indemnification or hold harmless agreements that are required in order to receive such medication.

It is also recommended that the Advanced Directives authorize telephone, video or electronic communication by the agents with the medical providers and to allow the agent to view any health care information or documents electronically.  Rather than re-doing documents that would apply in “normal” times, one possible approach is to draft a supplement to the regular Advanced Directive which applies only to COVID-19 diagnosis or the presentation of symptoms that suggest testing for the virus is appropriate.  The document could also contain a provision that requests health care providers and courts to recognize the validity of this document it if is signed but not witnessed or notarized because of the principal being in quarantine or because of lack of access to a notary or witnesses due to the current local governmental orders.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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