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Blog last updated on June 21, 2021.

Based on recent news and the availability of vaccines, we may be able to assume that the worst of the COVID-19 pandemic is finally behind us. Yet, thousands of people are still getting hospitalized on a regular basis. 

When imagining emergency care for COVID-19, the minds of many people automatically drift to one medical device: the ventilator. This possibility has many people thinking: will COVID-19 activate my Living Will? There is a common language in a Living Will stating that in the event your Living Will is activated, you do not wish to be put on a ventilator and instead would like to be allowed to pass away naturally. 

The truth is that there are strict conditions under which a Living Will must be activated, and they almost never apply to acute diseases like COVID-19. While the death toll across the nation from COVID-19 has admittedly been staggering, an incredibly small window of patients would experience conditions that would activate their Living Will. This is because Living Wills pertain to diseases that are considered terminal, and COVID-19 is an acute disease considered treatable. 

If you are thinking about changing the terms of your Living Will or planning ahead in the event of an unforeseen event, then there is no time like the present to revisit these matters. While COVID-19 may not impact your Living Will, some other conditions might, so let your concerns motivate you to review your plans and change them as necessary. 

Our New Jersey estate planning attorneys are here for you. Call us today at 609.580.1044 or contact us online to schedule a no-obligation appointment.

Does Needing a Ventilator During COVID-19 Treatment Activate My Living Will?

Typically, no.

A ventilator is a machine that can breathe for you. It does so by forcing oxygen into the lungs and pulling it out again, aiding patients who are not able to breathe on their own. Since COVID-19 is a respiratory illness, many patients suffering from severe cases require the use of a ventilator during their treatment.

Generally speaking, physicians have guidelines to treat any patient to the best of their ability and using all reasonable and necessary means. With an acute respiratory disease like COVID-19, the survival rate for patients can be very high, especially if they receive prompt medical intervention. This survivability means that, in nearly every case, every doctor treating a COVID-19 patient will act as if the case is treatable right up until the moment the patient dies.

In any case, treatment for an acute disease like COVID-19 differs from a terminal, chronic diseases like stage 4 lung cancer, where medical knowledge tells us that survival is almost impossible once the disease has progressed so far. In cases where the medical consensus assumes the patient will not make it, doctors switch from life-saving care to palliative care. Palliative care means providers aim to make the patient comfortable, rather than trying to continue saving their life using any means necessary.

What this means is that a COVID-19 case — even a severe one in a patient with pre-existing conditions — is very different from a terminal illness. Even if a doctor knew there was a near-100% chance a patient would die, they would still provide life-saving treatment for as long as possible. 

The only exception would be for cases where COVID-19 symptoms or related complications caused a patient to fall into a vegetative state or irreversible coma. If a patient's body continued living but they were unconscious for several days or more, and the attending physician has no reason to think the patient might recover, then the terms of the patient's Living Will may be activated. These cases are outliers, meaning they are extremely uncommon, and they most often occur in individuals who are older or who have severe pre-existing health complications.

When Is My Living Will Activated?

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. 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 continued 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 soon.

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 under similar circumstances. 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 could make a significant recovery.

Review Your Living Will and Advanced Directives, and Prepare Ahead With New Jersey Estate Planning Attorneys

While 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.

Times like these remind people of the importance of Living Wills that are up-to-date. After all, Living Wills are important documents to have in your estate plan.

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 or contact us online now to schedule your consultation.

Contact Us Today!

Van Dyck Law, LLC

707 State Road, Suite 102
Princeton, NJ 08540

(609) 580-1044