The COVID-19 Hole in your Living Will - The Safety Net That Wasn’t - Hammerle Finley Law Firm

COVID-19 has put your Living Will directly to the test, and the results are not pretty.

A Living Will, formally known in Texas as a Directive to Physicians, is a document specifying your medical wishes in the event you become critically ill and are unable to communicate them. In it you can direct whether you want artificial measures, such as a ventilator, used to prolong your life.

There is a catch, however. The Directive to Physicians only applies if you have been diagnosed either with a terminal condition in which you are expected to die within six months or with an irreversible condition, such as dementia, that makes you unable to care for yourself or make decisions for yourself.

Enter COVID-19. This is a condition for which, at its severest, many physicians routinely use a ventilator for their patients.

A ventilator is a machine that pumps oxygen into your body while you lie in bed with a breathing tube inserted in your windpipe. Typically, you are sedated while on a ventilator.

Use of a ventilator over a long period of time can have devastating effects for older people.  While the COVID-19 data is incomplete, some physicians have gone on record with observations that many older COVID-19 patients spend two weeks or more on ventilators. That is much longer than would normally occur with other critical illnesses.

They have also observed that these same patients, if they survive, often suffer from delirium and will need prolonged ongoing care and rehabilitation. Couple that with the bleak survival rate early reports have given for ventilator patients – anywhere from 11.9% to 34% – and the decision to use a ventilator becomes critically important.

The problem with most Living Wills is that they do not apply to a situation where the patient does not have a previously diagnosed terminal condition or an irreversible condition like dementia.  In Texas the statutory Living Will, by definition, does not apply to a healthy person who comes down with a viral infection like COVID-19.

How, then, can you make your wishes known regarding being put on a ventilator in the event  you come down with COVID-19?

There are several ways. All of them assume that you are competent at the time you give your decision. None of them are guaranteed to work.

  • At the time the decision needs to be made, you can personally give your decision to the doctor or the staff.
  • In advance of the need for a ventilator, you can give a non-written directive in the presence of the attending physician and two witnesses. The witness part is tricky because at least one of them has to be truly independent – that person cannot be an employee of the health care facility or the attending physician, related to you by blood or marriage, your beneficiary or heir, or have a claim against your estate if you die.
  • You can sign a new Directive with specific COVID-19 instructions.
  • You can sign a new Medical Power of Attorney that contains COVID-19 instructions to your agent.
  • You can discuss your wishes with your Medical agent and your family.

Check your documents. Have the conversation. Time is not on your side.

Virginia Hammerle is a Texas attorney whose practice includes estate planning, guardianship and probate. Sign up for her newsletter at Contact Hammerle Finley Law Firm to schedule a consultation at

This column does not constitute legal advice.