In these days of COVID-19, working from home, and avoiding social contact, one medical device is receiving more attention than normal: the ventilator. A ventilator is a machine that can breathe for you by forcing oxygen into the lungs and pulling it out again if you are not able to do it on your own. Since it is a respiratory illness, many patients suffering from COVID-19 require the use of a ventilator during their treatment.
There is common language in a Living Will that states that in the event your Living Will is activated, you do not wish to be put on a ventilator and would like to be allowed to pass away naturally. Today, the question that comes to mind with all the talk about ventilators in the news is “does this language prevent my doctor from using a ventilator to treat me if I am struggling with COVID-19 symptoms?” The language in your Living Will will not, in almost all cases, prevent your doctor from treating you for COVID-19 with a ventilator.
A Living Will is an estate planning document that allows you to express your wishes regarding the treatment you will receive during end-of-life care. Some Living Wills appoint a healthcare representative, similar to a power of attorney, who has the authority to make the ultimate decisions concerning your end-of-life care, and others do not appoint an agent and state that the physician must adhere to the decisions you have described in the document. The term to note when determining if the terms in your Living Will will apply to a situation is “end-of-life care.
In order for your Living Will to be activated, three facts have to exist: (1) your attending physician must agree that you are terminally ill, (2) you are in a vegetative state or an irreversible coma, and (3) your attending physician concludes there is no hope of recovery from this condition and death is imminent if these life-sustaining measures are not taken. As with all legal documents, every Living Will is governed by its own terms, so be sure that you take the time to review your own Living Will to be sure that you are comfortable with its terms. If you do not have a Living Will or have questions or concerns about your existing one, you should contact an elder law attorney
In some cases, you will see Living Will terms within the same document as your general Health Care Power of Attorney (Advance Health Care Directive). This makes it impossible to prevent the physician from seeing your end-of-life treatment preferences before the time comes to use them. Physicians should be aware of this standard and should not look at your Living Will unless life-sustaining measures are indeed necessary. If your current health care directive is a combined document and you would like to divide them into separate documents, contact an elder law attorney
Putting that standard into the context of COVID-19, a doctor should not be looking at your Living Will unless all prongs of the standards above are met. If your attending physician believes that there is a fighting chance that you can recover from your condition, your Living Will is not activated and you should be able to receive ventilator treatments, even though your Living Will expressly states that you do not want these end-of-life treatments. Even if you are terminally ill, have been diagnosed with COVID-19, and unconscious, your Living Will terms will not be activated if the doctor believes that, using this ventilator, there is a chance you will make a significant recovery.
Living Wills are important documents to have in your estate plan. There is so much talk about ventilators these days. You can rest easy knowing that you will not be denied any treatments that could allow you to make a full recovery, regardless of the language in your Living Will.
Van Dyck Law assists its clients with the development of Living Wills, Health Care Powers of Attorney, and many other estate planning documents and long-term care planning. We continue to be here for you amid the pandemic, and during this time of social distancing, we are offering consultations via video or phone. Call us at 609-580-1044 to schedule your consultation.

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