Will My Living Will Prevent Me From Having a Ventilator for COVID-19?

When I am preparing a client’s living will, it is by far the most common choice for them to indicate that they desire no extraordinary measures. One of the extraordinary measures specifically spelled out in a living will is mechanical ventilation.  

But what if you need a ventilator for a COVID-19-related hospitalization?

The current state of ventilators in Pennsylvania

I do not recall a time when mechanical ventilators were receiving more worldwide attention than right now.  

The main reason for all of the shelter in place orders is to flatten to curve. We need to allow the medical community the ability to keep up with the demand. One of the most in-demand medical devices essential to treating severe cases of COVID-19 is the ventilator.  

Ventilators are so crucial in our current climate that the Pennsylvania Department of Health has a public dashboard to view the total number of ventilators in Pennsylvania and the total in use at any one time. 

As of the time of publication, Pennsylvania has 5,122 ventilators and 653 COVID-19 patients on ventilators. Don’t forget: ventilators continue to be needed for other health issues as well. At the time of publishing, 1,461 ventilators were in use in total in Pennsylvania.

Living wills and COVID-19 ventilation

Many clients have asked me: Will my living will prevent me from having a ventilator if I contract COVID-19 and require one? 

The short answer is no.

In most cases, a living will will not prevent the use of a ventilator should you require one.  

A living will does not become effective every time you are ill. Rather, a living will only impacts your care when you are 

• in the end-stage of a medical condition with no hope of recovery and 
• unable to communicate your wishes.  

There have been many stories of people requiring ventilation from COVID-19 and making a full recovery. While the mortality rate varies among different age groups, even for the elderly, COVID-19 is not considered end-stage at the point of ventilation. 

How living wills can prevent you from receiving a ventilator for COVID-19 under certain circumstances

The fact that your living will states you do not want the use of mechanical ventilation will not prevent the use of a ventilator in the event one is necessary due to contracting COVID-19.

That is, unless:

• you have another condition that doctors have deemed terminal, AND 
• it is actively killing you, AND 
• death is imminent, AND 
• you cannot communicate your wishes.

If you do not want a ventilator even in the case of COVID-19, you must communicate that to your health care agent while you are still able to communicate.  If and when you become unable to communicate, your health care agent needs to know what you do and do not want.

Lindsay Schoeneberger is an attorney at Russell, Krafft and Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Widener University School of Law and practices in a variety of areas, including Estate Planning and Estate Administration.