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Corona Vaccine – Informed Consent Issues

by Phil Levin, Esq. on January 1st, 2021
Vaccine - Informed Consent

The much-anticipated Coronavirus vaccine has arrived. It is now rolling out to nursing homes and assisted living residences throughout the country and many residents are already receiving inoculations.

Long-term care facilities have been prioritized, having been hit brutally hard by the virus. Although less than 1% of the American population resides in long-term care facilities, 40% of all Covid-related deaths have occurred in them, according to Atlantic magazine’s Covid tracking project.

While inoculation centers are being established at many LTC facilities, there are several legal and logistical concerns to be addressed going forward, particularly in view of the speed with which this massive operation is unfolding. If you have a loved one residing in long-term care, you should be aware of the issues detailed in this edition of Estate Planning Matters.

The Vaccination Is Not Mandatory, But Consent Is
The medical community has cheered the arrival of the vaccine. Based on a study of 44,000 people, including the elderly and those susceptible to other health problems, the FDA has determined that the vaccine is safe and 90% effective. The American Health Care Association is encouraging all nursing home residents to be inoculated by March 1.

That said, some people are skeptical. A recent Associated Press poll reveals that 25% of those polled will reject the vaccine, and an additional quarter are not sure about receiving it. Therefore, it is not hard to imagine disputes arising within families.

The vaccine is not mandatory, and LTC residents have the right to accept or reject medical treatment and medication, including vaccines. If your loved one is mentally competent, it will be his or her choice to accept or reject the vaccine.

However, nearly 50% of all long-term care residents are cognitively impaired to some extent, and incapable of giving informed consent. If that is the case with your loved one, who does have a valid Health Care Power of Attorney, the duly appointed Health Care Agent will be contacted so that consent can be secured.

Family Disagreements Could Arise
But what happens if the resident does not have a valid Health Care Power of Attorney? Suppose, for example, Mrs. Smith has a Health Care Agent appointing her husband as her Agent. If her husband predeceased her, or is not competent, and she never named backup Agents, or her backup Agents are not alive, that could open the door to multiple family members becoming involved in the decision-making process, and increase the chances of family disagreements.

Another potential issue that may arise: What happens if the resident is only mildly cognitively impaired, wherein he or she is lucid some of the time? Suppose the patient wants the vaccine but the Health Care Agent is opposed to it, or vice-versa?

Get the Facts
Pfizer and Moderna, manufacturers of the currently available vaccines, are providing comprehensive fact sheets for the public. The safety and effectiveness record are very good. On the other hand, the fact sheets note that the FDA has made the vaccine available for emergency use, which is less than complete FDA approval.

Some medical experts are concerned that residents, as well as their Health Care Agents, may not be able to fully understand the information provided in the vaccine decision making process. It is also unlikely that facility staff, stretched as thin as they are right now, will have the time to spend with all residents and families to answer all their questions thoroughly. However, it is vitally important for the elderly and impaired, along with their loved ones, to understand the benefits and potential risks of receiving the new vaccine.

We suggest that you do your own research on the coronavirus vaccines using reputable sources, and talk to your doctor. Then, when you have to decide about the coronavirus vaccine – for your loved ones and yourself – you will feel confident in your decision.

Talk to Your Estate Planning Attorney
Everyone – not just residents of long-term care facilities – should have an up-to-date estate plan, which includes a valid Health Care Power of Attorney, designating who should make vitally important health care decisions, if they are unable to do so for themselves

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