Empty hospital bed

The current healthcare crisis has created an influx of calls to our office regarding the efficacy of DNR orders and Living Wills.  In the last few weeks, we have received multiple communications like this: “I can’t believe my mom has a DNR.  Now that she has been diagnosed with COVID-19 (or is concerned about contracting it), the hospital will never put her on a ventilator.” This highlights the common confusion between a “Do Not Resuscitate” order and a Living Will and the misconception that they are the same document. While inter-related, they are very different.  As explained below, neither document, in and of itself, directs or prevents health care professionals from using a ventilator to aid a patient’s breathing.

DO NOT RESUSCITATE (“DNR”)

A DNR order placed in one’s medical record by a doctor informs the medical staff that cardiopulmonary resuscitation (CPR) should not be attempted if the patient stops breathing or suffers a cardiac event. The order is based on the doctor’s medical opinion that resuscitation would be futile or result in harm or pain to the patient.  The DNR is written by a doctor, not by the patient (although it is sometimes written at the patient’s request).

Importantly, a DNR is specific about CPR. It does not state that the patient should not be treated.  In the case of COVID-19, “treatment” includes the use of a ventilator, so it’s use is not affected by a DNR.  

LIVING WILL

Living Wills generally have two components, an Advance Directive and Health Care Proxy.    Advance Directives are legal documents signed by the individual, containing instructions and preferences for medical care in an end-of-life scenario. They are often relied upon if one or more doctors determine the patient is terminal, incurably and permanently unconscious, and there is no reasonable hope of recovery. A Living Will helps one avoid end-of-life suffering and relieves family members and friends of the difficult burden of making these decisions.

Living Wills can be very simple and broad-based, or they can be complex and specific.  One should consult with an elder law or estate planning attorney prior to executing a Living Will. This important document does not affect the use of a ventilator during a COVID-19 crisis unless the ventilator is no longer considered treatment but instead a life-sustaining measure for a terminal patient with an incurable and non-reversible condition.

A Health Care Proxy designates an agent to act on a patient’s behalf to make and enforce medical decisions in the event the patient is unable to give informed consent or make decisions on his or her own.  Generally, it is up to the agent to advocate for the patient and carry out the wishes outlined in the Advance Directive based on the facts and circumstances that exist after consultation with the medical professionals.

PRACTITIONER ORDERS FOR LIFE-SUSTAINING TREATMENT (POLST)

The POLST, a third end-of-life healthcare document, was signed into law in New Jersey in 2011 and is intended for those patients who are considered at risk for a life-threatening event.  It is a healthcare planning tool designed in conjunction with the patient and his or her medical professionals.   While similar to an Advance Directive, a POLST provides even more specific instructions as to one’s preferences concerning end-of-life decisions and becomes part of the patient’s medical record. The POLST form provides instructions related to the patient’s care, hospitalization, resuscitation, and artificial nutrition. In New Jersey, the POLST form is green so that it stands out in a medical file.

The above documents are important components of a comfortable and complete end-of-life plan. They are all designed to allow patients and/or medical professionals to make decisions before a crisis and should not be avoided based on the fear that their use will prevent life saving measures such as ventilators in a COVID-19 scenario.

Of greater concern during the COVID-19 crisis are the policies and practices being implemented by nursing homes, assisted living facilities and medical institutions whether to treat patients irrespective of the whether they have any Health Care Directives.   As a result, it is imperative for family members with loved ones in nursing homes and other institutional settings to speak with the administrators of the facilities to understand the protocols in place and be prepared to act accordingly. 

As always, the elder law department at Mandelbaum Salsburg stands ready to answer your questions regarding the various scenarios you or a loved one may encounter.  During this quarantine period, we are available to remotely assist you to sign documents.

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