In Florida, your living will is a written or oral statement about your end-of-life wishes as set forth in Florida Statutes. The concept of the living will is that it says what you would want if you are not able to make your own medical decisions AND you are either in a terminal condition, an end-stage condition or you are in a persistive vegetative state. I could talk for hours about the effectiveness of living wills, how to properly create one, the history of living wills in this country, the Terry Schiavo situation, etc., all of which are a part of being a good elder law attorney. In this day and age of Covid-19, I wanted to confirm how your living will would effect a diagnosis of Covid.

This is a question I have been receiving a good deal of recently:  What if I am in the hospital with Covid-19 and my living will says that I would not want to be resuscitated - does that mean that the hospital will let me die or not put me on life-support?  The basic answer is "NO."  Very importantly, having a living will would not effect your treatment at a hospital if you have a Covid diagnosis.  First of all, your living will only goes into effect when you are not able to make your own medical decisions.  But if you lose capacity, then doctors only withhold medical treatment if two of them say you are in a:

  • terminal condition - means a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.

  • persistent vegitative state -means a permanent and irreversible condition of unconsciousness in which there is:

    (a)The absence of voluntary action or cognitive behavior of any kind.
    (b) An inability to communicate or interact purposefully with the environment.
  • end-stage condition - means an irreversible condition that is caused by injury, disease, or illness which has resulted in progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability, treatment of the condition would be ineffective

Put simply, getting Covid does not mean you are going to be in any of these conditions, so even if you are unable to communicate, the medical team will need time to determine that you are at the end of your life and that you are not going to get better.  This means they are going to treat you as much as they can - only if your treatment would be futile will your living will be put into place. So you do not need to revoke your living will or anything like this during these extraordinary times.

While we are on the topic, there was a great piece of advice written about living wills in a recent Dear Abby column.  In this column, the writer discusses how his wife went for routine surgery but that problems occurred: 

My wife went to the hospital for a routine procedure that required anesthesia. After three hours of what was supposed to be a one-hour procedure, a nurse came out, said there was “a problem” and took me back to the recovery room.

My wife was writhing on the bed and kept rasping, “I can’t breathe!” Six nurses tried to put an oxygen mask over her face, but she kept fighting them, trying to rip it off. I was in total shock.

I didn’t know how to help her, so I asked the anesthesiologist standing there to do something, and he said her living will was a DNR (do not resuscitate). She remained in cardiac and respiratory distress for eight hours before a pulmonologist was mercifully called and she was put on a ventilator.

I went home and pulled out our living wills. Hers stated, and I quote, “the individual so named must be terminally ill or permanently unconscious” for its provisions to be in effect. I had no idea. She was neither of those things. If I’d had a copy of the living will with me, I’m sure she would have immediately been put on a ventilator.

Here, the author concludes that he wishes he had his wife's living will with him as he would have immediately put her on a ventilator when she went into respiritory distress, and he was certainly correct to feel that way. His wife's living will should not have dictated her care in the least unless she was diagnosed with an end-of-life condition.  Simply put, the problems with the routine medical procedure should not have mounted to withholding medical care, such as a ventilator.  Withholding medical care (the ventilator) should only have been considered if her health was not going to improve at all and whatever health issue she had, there was certainly not enough time to consider her condition in the emergency.  I am sorry for the pain he went through - his wife did not sound like she had many issues before her problems, so the default should have been to treat her - not wait 8 hours to put her on a ventilator!

The tie-in of Covid to the Dear Abby letter is that the medical team's default is to treat you unless you are not going to get better. It is generally difficult to determine that you are in an end-stage condition, vegetative state or terminal condition.  Put simply, these things take time to diagnose and the default should be to treat. Of course, if you are are at the end of your life and treating you would just prolongue your misery/pain, then certainly the living will should be useful, but not until all reasonable options are considered - none of which are considered in an emergency.

If you want to learn more about living wills:

If you are a Florida resident, you may want to learn more about estate planning by downloading my free book on estate planning.









D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney
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