By Peter Reiss
Ventilators and Your Living Will
Ventilators are machines that pump oxygen into your lungs and body and help to get rid of carbon dioxide through the lungs. Understandably, ventilators have been subjects of great interest during the current coronavirus pandemic.
Many Advance Health Care Directives (living wills) specify that in the event the living will is activated, the patient does not want to be put on a ventilator.
Clients are asking if having this provision in their living will would prevent a doctor from using a ventilator to treat them for COVID-19 symptoms.
In almost all cases, the answer is no.
Just as your Will applies only if you are deceased, most living wills apply (are activated) only if (i) you have an “end-stage medical condition”: one which will result in death, despite the introduction or continuation of medical treatment, and (ii) you are permanently unconscious such as in an irreversible coma or irreversible vegetative state, and (iii) there is no realistic hope of significant recovery. If these three preconditions do not exist, your doctor should not even be looking at your living will.
In other words, even if you do have an end-stage medical condition and you are unconscious, if your doctor believes that with use of a ventilator you may substantially recover from the virus, your living will is not “activated” and the provision prohibiting the use of ventilators will not apply.
Like all legal documents, your living will is governed by its specific terms, so if you have any question about how its terms would apply in a given situation, you should consult an estate planning attorney.
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.
