Living will in times of Corona

01.03.2021

Do living wills need to be adapted in light of the Corona pandemic?

At the moment, notaries are frequently approached with the question of whether living wills need to be adapted against the background of the Corona pandemic. Standard living wills often contain the sentence:

 “... that, in particular, artificial respiration or artificial hydration should no longer be given if I am in all probability inevitably in an ­immediate dying process or I am in the terminal stage of ­an incurable terminal illness, even if the time of death is not yet foreseeable.”

The question arises here as to whether the scope of application of the living will is opened up at all, since a large number of COVID-19 diseases do not necessarily lead to a life-threatening course. However, it may become important if a "coma" situation develops as a result of a COVID-19 disease or if the disease takes an incurable course and will in all probability lead to death. Therefore, it cannot be ruled out that, as a result of a COVID-19 disease, conditions may occur which are described in the living will and which then result in a waiver of treatment in accordance with the stipulations of the living will.

What response options can be considered?

  • If the existing living will also covers subsequent conditions and treatment situations such as may be associated with COVID-19 disease, and if this is desired by the patient, the living will may be upheld.

  • If the examination shows that COVID-19 diseases are covered by the advance directive drawn up and these should generally be excluded from the scope of application, then the advance directive can be supplemented accordingly. It could also be formulated that, in the case of a COVID-19 disease, the patient's refusal of intensive medical measures should not apply. Alternatively, in the case of a COVID-19 disease, the best possible medical treatment with non-invasive ventilation or invasive ventilation, depending on the course of the disease, could be desired, or other medical and nursing treatment and administration of medication could be requested.
  • Of course, it would also be possible to supplement an already existing living will with special regulations for the case of a COVID-19 illness. For example, it could be stipulated that in the event of such an illness, the patient should not be transferred to a hospital or should not receive intensive medical treatment or artificial respiration. If the patient wishes to refuse artificial respiration in the event of a COVID-19 disease when serious health consequences are to be feared (and not only in the coma situation or when there is an incurable underlying disease with a fatal course), the content of the living will could be adapted and extended. However, it should then be made clear that the threshold for discontinuing treatment is lower than in the "normal case".

The current will must be taken into account

However, it seems questionable whether it makes sense to lay down such specific instructions on certain intensive medical treatments in advance of an illness. The current will of the patient who is capable of giving consent must always be taken into account in preference to the living will. As long as the patient himself - even after contracting COVID-19 - can still decide whether to consent to medical measures or refuse treatment, the living will therefore does not come into play.