In August of 2020, during the first wave of COVID-19 cases, I advised readers to review their medical advance directive documents. These documents could contain language that prohibits intubation and/or use of a ventilator in all situations. Allowing intubation and ventilator use can be life-saving for some COVID-19 patients. There have been a few variants since the first wave, the latest being the Omicron variant, so this advice is still necessary.
Medical advance directive documents include the Massachusetts MOLST Form, Living Wills also known as Advance Directives, 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.
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.
Living Wills, also known as Advance Directives, are not legal documents and not legally binding in Massachusetts. They are, however, 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 or Advance Directive gives the health care agent named in your health care proxy clearer directions on your wishes of how to act on your behalf regarding these medical decisions.
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 therefore unable to make their own medical decisions. A Health Care Proxy is strongly recommended for every person age eighteen and older. If a legal adult becomes incapacitated with a serious illness or injury and is unable to make medical decisions and has not signed a valid health care proxy, a court proceeding appointing a legal guardian is necessary to make those medical decisions.
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. Every medical case is different, and patients do 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 there was a very low chance of recovery or there would be poor quality of life with survival.
Another issue with these documents is the appointed health care agent’s communication with medical staff. During COVID-19 surges, communications with medical staff sometimes can only be by telephone and electronic means. Many pre-COVID-19 medical advance directive documents may not contain clauses that would also authorize communication with medical staff solely by telephone and/or electronic video communication and also allow signing documents by electronic means.
Review all your medical advance directive documents to make sure they express your intentions for all medical situations and to assess if you want to change or add an addendum to these documents to allow any exceptions because of COVID-19.
