Changes to Legal Documents in light of the Coronavirus pandemic

In light of the Coronavirus pandemic, all clients should immediately review their healthcare-related documents including living will, healthcare proxy, and HIPAA release.

 

Most client advisors are familiar with the need to have a current document that reflects the client’s current wishes and to list an agent who is able and willing to act as well as several successors. Even though many clients also are familiar with these obvious steps reminding them at this very difficult time to address these matters will prove helpful.

 

There are several important issues with respect to these documents that warrant immediate revision of these documents for many clients. These issues are specific to the current circumstances of the Coronavirus pandemic.

 

Living Wills, do not resuscitate orders and other healthcare-related documents should be carefully reviewed at this time for several reasons. Many of these documents (especially standard forms) may contain language that could be contrary to your wishes during the coronavirus. Some of these documents may prohibit intubation under all circumstances. If you are in a terminal condition and contract coronavirus, since it is a lower respiratory tract infection with symptoms felt in the chest and lungs, it is possible that you would need to be intubated to survive it. Many people who initially sign such prohibitive forms may have in mind an extended chronic illness in a hospital connected to numerous tubes being artificially kept alive, not a short-term traumatic infection. Clients with documents that prohibit intubation in all circumstances should immediately revise those documents and execute new documents that contain a more reasonable allowance for intubation based upon the current circumstances.

 

In many instances, in the past, an agent would be in the hospital with the individual who appointed them. However, the quarantines and the need for social isolation may prohibit physical presence. This is a unique situation is not contemplated in most documents. Legal provisions should be added to all healthcare-related documents that specifically authorizes the agent to give directions by telephone, web conference, email and other forms of communication. It should also let medical providers accept such indirect forms of communication and decision-making by a health care agent and specifically hold harmless and indemnify all medical care providers from any liability whatsoever for relying on those indirect means of communication.

 

Sample Clause to Consider: I expressly authorize my Agent to communicate decisions to any medical provider verbally, in person, by telephone, via email, via video conference, or in any other remote manner appropriate to the circumstances. Further, I expressly hold harmless any medical provider for relying on such communications by my Agent. The express purpose of this provision is to permit decision-making by my Agent in remote or indirect manners that may be necessary or advisable given whatever circumstances accompany such decision-making.

 

While proper well-planned legal documents may not prevent a healthcare crisis, they can definitively control who makes decisions. It also prevents loved ones from being left with a stressful legal mess to fix in a tight timeframe. Clients should be encouraged to get legal affairs in order today to give the peace of mind that tangible steps were taken to be prepared for the current uncertain future.