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Your Medical Advance Directive Documents and COVID-19

rsz 1shutterstock 133487075 1You may need to review and update your medical advance directive documents because of COVID-19.  Certain language in these documents may cause unanticipated issues.  Medical advance directive documents include the Massachusetts MOLST Form, living wills, and the Massachusetts Health Care Proxy.

The MOLST Form and living will are primarily used for end-of-life decisions. MOLST stands for Medical Orders For Life Sustaining Treatment.  It is a medical document best suited for persons who are medically frail, have an advanced illness, a progressive illness, or a very serious injury.  Living wills, although not legally recognized in Massachusetts, are strong evidence of a person’s intentions as to the withholding or withdrawal of treatment for end-of-life decisions at any age.  A living will gives the health care agent named in your health care proxy clearer directions to guide that named person to act on your behalf for those medical decisions.

You may need to review and update your medical advance directive documents because of COVID-19. 

The Massachusetts Health Care Proxy is a legal document.  The Massachusetts Health Care Proxy law allows individuals to prepare a document naming a health care agent to make their medical decisions for them should they ever become incapacitated and thus unable to make their own medical decisions.  A Health Care Proxy is strongly recommended for every person age eighteen and older. If an incapacitated person with a serious illness or injury has not signed a valid health care proxy, a court proceeding naming a legal guardian is required.

One issue concerning COVID-19 and these documents is that many of the documents may contain language that prohibits intubation and/or use of a ventilator in all situations.  Allowing intubation and ventilator use, however, can be life-saving for some COVID-19 patients.  Every medical case is different and even older patients can survive COVID-19.  When many people first signed these documents they envisioned prohibiting intubation and ventilator use because they did not want to unnecessarily prolong their life in situations where chances of recovery were low and there would be no quality of life. 

Another issue with these documents regards the appointed health care agent’s communication with medical staff.  It is very possible because of COVID-19 that some hospitals will not allow family members and others inside the facility and communications with medical staff can only be by telephone and electronic means.  Many pre-COVID-19 medical advance directive documents may not contain clauses that would also allow communication strictly by telephone and/or electronic communication with medical staff and allow signing documents by electronic means.

Review all your medical advance directive documents to ensure that they express your intentions regarding intubation, ventilation, and authorizing your health care agent to communicate with medical professionals by telephonic and electronic means.  If you want to modify these documents to allow any exceptions and changes because of COVID-19, contact your attorney for advice.