COVID-19 AND END OF LIFE DECISIONS

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April 27, 2020

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For many of us, the thought of exchanging messages to find supplies of alcohol, hand sanitisers, face masks and gloves had never entered our minds before March 2020.  Worse still, the fact that we could have loved ones who are forced to die alone or that we would not be able to make plans to attend their funerals was unheard of.  However, those are the stark realities that we are now confronted with while we try to stave off the novel Coronavirus – COVID-19.

From medical and legal standpoints, dying alone has many implications.  Medically speaking, patients who are in critical condition due to the effects of COVID-19 are confronted with life and death decisions, many of which also have legal consequences.  For example, for a patient who has respiratory problems and has stopped breathing or is in cardiac arrest a decision must be made as to whether he or she should be resuscitated or not.  Legally, the questions of who has the authority to determine what treatment, if any, a patient should receive and the point at which attempts to treat someone should cease are all relevant and involve difficult decisions.

Among the unusual measures that were imposed in New York to protect emergency medical teams treating patients with COVID-19 was a “do-not-resuscitate” guideline that was issued on April 17, 2020.  According to those guidelines, paramedics and other emergency service workers were directed not to attempt to revive anyone without a pulse when they arrived on a scene during the pandemic.  This was a significant variation of the usual standard in New York, where it is reported that, traditionally, paramedics would attempt to revive persons for up to 20 minutes.  Thankfully, the guidelines were rescinded and emergency service workers said that they had never implemented it.

To the extent that COVID-19 has not discriminated between the wealthy, the poor, the young, the old, the physically fit or the unfit, we must all recognise that the life and death decisions occasioned by being infected by the virus could confront anyone.  For that reason, basic estate planning advice, such as ensuring that you have a properly drafted last will and testament cannot be overemphasized.

Of equal importance however, to anyone who wishes to die a natural death, and therefore does not want to be resuscitated if his or her heart has stopped beating, is the need to consider preparing an enduring power of attorney, an advance health care directive or a living will so that there is no dispute as to what your wishes are. 

An enduring power of attorney is a properly executed stamped and recorded power of attorney that includes provisions that gives a trusted person the right to make decisions concerning your finances, medical care and other matters even after you are no longer in a position to ratify that person’s actions.  This is different from a regular power of attorney which, arguably, ceases to have effect once you are no longer competent to act in your own right.  Today, we will focus on living wills.

A properly signed advance healthcare directive (often called a living will) should clearly state what medical treatment, if any, you wish to receive.  The difference between a regular last will and testament and a living will is that steps are taken pursuant to the provisions of a living will while you are alive, but a last will and testament states how you wish to distribute the property you die leaving behind, and only takes effect after you die.

Laws vary from country to country and, in fact, many countries, including Jamaica, have no laws that make provision for living wills.  However, at common law, it is arguable that the provisions of a living will should be followed, provided that there is proof that he or she:

  • was at least 18 years old when the document was signed,
  • was mentally competent at the time of signing,
  • was properly advised of the nature and effect of a living will before it was signed,
  • not under undue influence when it was signed,
  • did not make any verbal or written comments to say it was no longer effective, and
  • is mentally incapable of making any decision at the time the living will is being relied on. 

While it is a difficult topic to discuss with your loved ones, if they have clear knowledge of what your wishes are when they are asked to make a decision as to whether you should live or die decision, that knowledge should help to ease their burden.

Sherry Ann McGregor is a partner, mediator and arbitrator in the law firm of Nunes Scholefield DeLeon & Co.  Please send questions and comments to lawsofeve@gmail.com.

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