COVID-19 has beaten the world into submission with some countries and states faring worse than others. A particularly tough disease, authorities are quick to quarantine and even quicker to act with hospitalisation. We have all seen the videos of field hospitals erected in New York, Europe and China with beds lying next to hundreds of other beds and ventilators at the ready to pump liquid from affected patients’ lungs. The process of intubation, putting a tube into a patient’s lungs for the purpose of artificial respiration is one treatment that many of us fear the most and for some can leave permanent scars on the vocal cords or worse. And decisions to put a patient on artificial respiration are made quickly, particularly in times of a pandemic.
The real question is do you want a say in how your body and mind is to be run or is it best left to the health and government experts?
For some elderly patients, who are nearing the end of their life, they may have completed an Advance Health Care Directive (AHCD), a legally binding document which might state that the maker of the AHCD forbids the insertion of any tubes into their bodies. As a result, if a doctor or hospital breaches this agreement, they may suffer serious criminal or civil actions at the hands of the authorities or the patient and their family. An AHCD is a very powerful legal document and provides your wishes and directions to the world on the type of care you want and do not want, where you want to be hospitalised and where you don’t plus whether you are to even be sent to a hospital or not. And they are not just for the elderly, they are for any age.
Let me ask you a question: Do you have an Advanced Health Care Directive in the age of COVID-19? What is an AHCD?
An AHCD is a legally binding set of directions based on state laws created specifically for a person’s personal care and health. A few important things. Firstly, it is not just for the elderly and any person over the age of 18 can and probably should make an AHCD. Secondly it is NOT your enduring power of attorney which generally covers the appointment of an attorney for your financial and legal matters in the event you are incapacitated. Consider this following example of an AHCD in action compared to an enduring power of attorney.
By way of illustration, thirty-year-old Stavros has recovered from serious injuries in a motor vehicle accident and it is going to take a long time before he would be able to make his own decisions again. Though Antonio was appointed as Stavros’ Medical Decision-Maker for health and other medical decisions, Stavros’ brother Con had been appointed as his Financial Attorney several years before to make decisions about his finances when he was unable to. Antonio contacted Con and asked if they could discuss where it would be best for Stavros to continue his recovery, for example in a dedicated rehabilitation facility, at home with bought-in support, or at Antonio’s house with finances to support his care.
The Legal Side and some Requirements
As noted, each State with the exception of NSW has their own AHCD laws. For example, in Victoria it is the Medical Treatment Planning and Decisions Act 2016 (Vic). In WA, it is the Guardianship and Administration Act 1990. Some of the questions that you will be asked, and is particularly important to complete, include (try them yourself):
1. If I am permanently unconscious (in a coma):
I do not want cardiopulmonary resuscitation.
I do want cardiopulmonary resuscitation.
I do not want assisted ventilation.
I do want assisted ventilation.
I do not want artificial hydration.
I do want artificial hydration.
I do not want artificial nutrition.
I do want artificial nutrition.
I do not want antibiotics.
I do want antibiotics.
They are not easy questions to answer but without the answers what will the doctors do? My guess is that you will be hooked up to all manner of gadgetry, possibly for years on end. For some of us that is perfect, for others we may prefer to plan for a range of outcomes including appointing someone who as our medical decision maker. This person, who operates under your authority and based on any guidelines you provide, can make health care decisions on your behalf. Remember Antonio above in relation to Stavros.
As Stavros cannot make a decision on his own, Antonio is legally able to do so for Antonio. But, of course, it is vital to ensure that any authority, particularly for medical decisions is well thought out. If you’re in doubt, then seek independent legal advice from your lawyer who may put in place an Advanced Health Care Directive.
Tony Anamourlis (CTA) (SSA) is a Tax Lawyer.