People ask me all the time, “When is the right time to make a Will?”…
New York City is now the epicenter of the Covid-19 crisis.
Not every New Yorker has the ability to make medical decisions on their own. Many New Yorkers with dementia, cognitive impairment, or functional limitations have already been diagnosed with Covid-19, or will be diagnosed in the near future.
Who will make health care decisions, including life and death decisions, on their behalf?
Health Care Agents, Surrogates, and Legal Guardians
If a patient makes a Health Care Proxy, they have decided in writing who will make routine and non-routine medical decisions for them in the event they cannot make those decisions on their own, including decisions related to a Covid-19 diagnosis.
A Health Care Proxy is a document created by an adult (the “principal”) to another adult, (known as a “health care agent”), to make health care decisions on behalf of the principal in the event the principal becomes mentally incapacitated and is unable to make medical decisions for themself.
If a mentally incapacitated New Yorker has not made a Health Care Proxy and does not have a court-appointed Guardian, a family member or friend will be designated as the health care “surrogate” pursuant to statute. (In order of priority, those who have not engaged in advance planning will have their decisions made, if there is one, by a legal guardian, so long as they are given the requisite power by the court, a spouse or domestic partner, adult child, parent, sibling, or close friend).
Legal guardians given personal needs powers over their “wards”, the incapacitated persons for which they serve, will usually be guided by the same standards as a surrogate set forth in New York’s Family Health Care Decisions Act.
End-of-Life Decision Making Where Wishes are Known
Many people will spell out their wishes regarding end-of-life decision making right in a health care proxy. Others will make a separate document called a “Living Will“. A Living Will is a written statement that makes one’s wishes regarding medical treatment known to their health care agent, health care surrogate, or legal guardian. The statement is to be followed by the agent, surrogate, or guardian if a patient is unable to provide instructions at the time a medical decision needs to be made. Living Wills typically provide instructions regarding end of life decision making, including intubation and mechanical ventilation, a common need for many Covid-19 patients who have trouble breathing. Some patients who do not have a Living Will will express their wishes using a MOLST.
To be clear, in New York, assisted suicide is not an option. Period. Not for anyone. But that doesn’t mean a patient can’t refuse treatment and die on their own terms. It also doesn’t mean that agents, surrogates, and guardians can’t refuse medical treatment on behalf of the patient with Covid-19 if the patient expressed their wishes prior to losing capacity.
Unknown Wishes and the “Best Interests” Standard
Health care agents, surrogates, and guardians often must make a judgment call about the patient’s life if the patient’s wishes about life sustaining treatment are unknown. When the patient’s wishes are unknown, the decision maker must do what is in the patient’s “best interests”. If the patient did express a preference, whether by Health Care Proxy, Living Will, orally, or in another form of writing, their wishes should generally be followed. Otherwise, the best interests standard governs.
What is Life Sustaining Treatment?
There are many forms of life-sustaining treatment. In the context of the novel coronavirus, a “Do Not Intubate Order”, or “DNI Order”, is particularly important. It means no artificial breathing. Mechanical ventilation, through the use of a ventilator, allows a patient to breath who otherwise has trouble breathing on their own. Difficulty breathing is a common symptom in people with Covid-19. Of course, many people would not want a DNI Order entered, and would want assistance with breathing.
Finally, it is important to keep in mind that most Living Wills state that life sustaining treatment should only be withheld in circumstances where there is no reasonable exception of recovery and the patient will never regain capacity to make decisions on their own. But of course, all cases are unique.
If you have any questions about making decisions for Covid-19 patients with diminished mental capacity, or any other issues regarding guardianship or estate planning, I encourage you to contact me at (646) 820-4011 or email@example.com.
This article is for educational and marketing purposes. It should not be construed as medical or legal advice.