As you are likely aware, several COVID-19 vaccines have recently been developed. Elderly and at-risk persons will soon be able to receive the COVID-19 vaccine. Whether or not to receive any vaccine is a personal decision.  But, what if you have to make that decision for an incapacitated elderly or at-risk adult? This blog outlines some general considerations and suggestions if you are responsible for making the decision for another adult as to whether they will receive the COVID-19 vaccine.

ONE: Do you, in fact, have legal authority to consent or refuse vaccination?

Whether you can consent for someone else to receive the vaccine depends upon in what legal capacity you are acting (e.g, legal Guardian by court order, Agent under Health Care Power of Attorney, or Surrogate Health Care Decision Maker under state law) and the scope of authority given to you by court order, state law and/or the health care directive, as the case may be. If you have any question about the capacity in which you are acting and/or your specific authority to act you should seek the advice of an experienced elder law attorney familiar with medical decision-making laws.  In some circumstances, it may even be prudent to seek a court order or take other appropriate action in order to best limit liability or conflict among family in the event adverse side effects arise from the vaccination or if you decide against vaccination.

TWO:  Consult with the incapacitated person’s medical professionals.

You should consult with the incapacitated adult’s medical professionals (i.e. primary care physician or other physicians) to seek specific advice as to whether it is advisable and recommended for the patient to receive the vaccination based on factors such as their medical and social history and residential placement.  You should also document your contact with your ward’s medical professional(s) by name, date, and their recommendation regarding the vaccine.

THREE:  Talk with the patient, if possible.

If the patient is able to participate in the decision with support (such as a clear, plain language explanation of the risks and benefits), his or her statements and past decisions concerning vaccines and their current concerns about COVID should be taken into consideration.

FOUR:   Get details from the patient’s placement.

If the patient resides in a long-term care facility, you should reach out to the facility staff as soon as possible to find out when they expect to have the COVID-19 vaccine available, the vaccination schedule, and what will be needed in terms of consent. Clarify that you will be making the decision, with the resident’s participation if possible. At this time, it does not appear that written consent will be required for long-term care residents. If you give oral consent, document your records that you did so, the date, and the person with whom you communicated.

WATCH OUT FOR SCAMS

Please also watch out for vaccine-related scams. If anyone calls and asks for your ward’s Social Security number, bank account, or credit card number in order to get a vaccine, it’s a scam. You cannot pay to move ahead in the priority list to get the vaccine. The Centers for Medicare & Medicaid Services (CMS) has stated that patients should not have to pay for the vaccine or its administration.

If you have any questions or concerns about your authority, responsibility, or role regarding the COVID-19 vaccine for an elderly or at-risk adult, please call our office at 480-922-1010 or email info@bivenslaw.com to schedule a consultation. As estate and elder law attorneys, our firm often represents individuals, licensed fiduciaries, banks, and trust companies in all types of fiduciary roles. We are here to help.

 

 

Disclaimer: The information contained in this document is provided for informational purposes only, and should not be construed as offering legal advice or creating an attorney client relationship between the reader and the firm or author. You should not act or refrain from acting on the basis of any content included in this document without seeking appropriate legal advice about your individual facts and circumstances from an attorney licensed in your state. Bivens and Associates, P.L.L.C. expressly disclaims all liability with respect to actions taken or not taken based on any or all information contained in this document.