Georgia's New Advanced Directive for Health Care

By David L. McGuffey, Certified Elder Law Attorney

An advance directive is a written expression by a patient that is intended to guide his or her future care. Advanced directives come in different forms and have been referred to as Living Wills, Health Care Powers of Attorney and DNRs. The circumstances in which they are used depends in part on the form selected. They generally become effective when a decision must be made and the patient no longer has decision-making capacity.

In Georgia, until recently, there have been two legal "forms" of advance directives: the living will and the durable power of attorney for health care. We do not consider a DNR to be a form because, technically, it is a medical order completed by your doctor and placed in your medical record. Georgia law provided statutory forms or suggested formats for how these two directives should be written.

On February 14, 2007, the Georgia House unanimously approved House Bill 24, which became law after it was passed in the Senate and signed by the Governor. The effective date of the new law is July 1, 2007. A copy of the new form is available for free on the State Bar of Georgia's website. One thing that the new law does is combine these forms, making it more likely that a person completing a Living Will also designates an agent for health care decision making. The most significant features of the law are as follows:

1. The law expressly recognizes the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn.
2. "Health care" is defined to mean any care, treatment, service, or procedure to maintain, diagnose, treat, or provide for a declarant´s physical or mental health or personal care. Other defined terms include "life-sustaining procedures," "State of permanent unconsciousness," "Living Will," and "Durable power of attorney for healthcare."
3. Anyone 18 years or older may execute an Advanced Directive for Health Care.
4. The Advanced Directive for Health Care must be in writing.
5. The new form does NOT have to be notarized.
6. There is no requirement that you use the statutory form; a document that "substantially complies" will be honored.
7. Advanced directives executed in other States will be honored if they were validly executed in the State of origin.
8. Witnesses must be persons OTHER THAN your health care agent and anyone who would inherit property from you.
9. Not more than one witness can be an employee of your health care provider.
10. Your physician cannot be your health care agent.
11. A copy is as valid as the original.
12. You may amend your Advanced Directive for Health Care at any time, but the amendment must be in writing.
13. You may revoke your Advanced Directive for Health Care at anytime.
14. A marriage automatically revokes your Advanced Directive unless the document provides otherwise.
15. A divorce or annulment automatically revokes your Advanced Directive.
16. An Advanced Directive is durable, meaning it remains effective even if you lose mental capacity.
17. If a guardian is appointed for you, your Agent under the Advanced Directive still makes your health care decisions unless the Probate Court enters and order providing otherwise. Your Agent would have to be notified of a hearing before that could happen and clear and convincing evidence would have to be produced showing that your Agent is acting in a manner inconsistent with the power of attorney.
18. If you can understand what's going on, your Agent cannot overrule your medical decisions.
19. Your Agent can sign all documents and contracts necessary to get you care. In our view, you should consider limiting this power by withholding power to enter into binding arbitration agreements with health care providers. Arbitration agreements would deprive you of your right to a jury trial if you are injured through negligence.
20. Prior to termination of life-sustaining procedures, the physician must certify that you are not pregnant or that the fetus is not viable.
21. The procedure for establishing a terminal condition or state of permanent unconsciousness is as follows: two physicians, one of whom shall be the attending physician, who, after personally examining the declarant, shall certify in writing, based upon conditions found during the course of their examination and in accordance with currently accepted medical standards, that the declarant is in a terminal condition or state of permanent unconsciousness.
22. The advance directive for health care shall be presumed, unless revoked, to be the directions of the declarant regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration.
23. Making or using an Advanced Directive is not suicide and cannot restrict or limit any policy of insurance.
24. You cannot be required to execute an Advanced Directive as a condition for receiving health care.

If you have questions about this new law, you should consult with an attorney. If you would like to speak with us about an Advanced Directive for Health Care, please do not hesitate to contact us at 706-428-0888.