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Two Big Covid-19 Legal Tips

 

When Wilma (all names changed) went to the hospital for Covid-19, they had to put her on a ventilator.

But years ago, Wilma had signed something called a living will which said that she did not want to be hooked up to any machines. What should the doctors do?

In Louisiana, a living will is a legal document that tells your doctors and your family whether or not you want to be hooked up to machines in order to keep you alive. Of course, if you are conscious and competent, then you can tell the doctors what to do about the machines regardless of what your living will says. But in Wilma’s case, she was unconscious. In a situation like that, the doctors are going to be interest in whether she has a living will.

But living wills only apply in certain situations. Here’s what Louisiana law says: the doctor must follow your living will if you have “a terminal and irreversible condition” and you are “comatose, incompetent, or otherwise physically or mentally incapable of communication.” When it comes to determining whether you have “a terminal and irreversible condition,” two doctors must agree that you are in “a continual profound comatose state with no reasonable chance of recovery” or you have “a condition caused by injury , disease, or illness which, within reasonable medical judgment, would produce death and for which the application of life-sustaining procedures would serve only to postpone the moment of death.”

In other words, if there’s a chance that you can recover, then the doctors are going to hook you up to the machines. A living will only applies if two doctors have determined that you’re not going to get better and hooking you up to the machines would keep you alive but only “postpone the moment of death.”

So, Wilma’s got Covid-19. Contrary to what you may have heard, that isn’t necessarily a death sentence. Intubation and placement on a ventilator might actually save Wilma’s life. She could get better and be just fine. Her condition isn’t “terminal and irreversible.” In “reasonable medical judgment,” there is a “reasonable chance of recovery.” That means that Wilma’s living will doesn’t apply to her situation.

Tip #1: Some living wills say that under no circumstances is the patient to be intubated. Is that really what you want?

But let’s get back to Wilma. The doctors have decided that there’s a “reasonable chance” that she could recover. But she’s still unconscious and can’t tell the doctors what to do. What happens then?

If Wilma has a health care power of attorney, then the doctors are going to ask the power of attorney what to do. In Wilma’s case, she had given her health care power of attorney to Fred, her husband. Which means that Fred will have to decide whether to have his wife put on a ventilator.

The difference between a living will and a health care power of attorney is whether or not the patient has a “terminal and irreversible condition.” If so, then the doctors are going to do what the living will says. But if it’s not a “terminal and irreversible condition,” then the doctors will go ask your power of attorney what to do. And in usual circumstances, the doctors would ask Fred in person. But with the Coronavirus, that may be impossible.

Tip #2: Which brings me to tip #2: make sure that your health care power of attorney specifically says that your agent (the person you give health care power of attorney to) has authority to communicate with your medical professionals by phone and electronic means.

That shouldn’t be necessary. There is nothing in Louisiana law that says that powers of attorney can only act in person. But does your health care agent know that? Do all health care providers in the state of Louisiana know that? The point of a good estate plan is to prevent problems before they happen. Especially in our Coronavirus times.

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