Georgia Updates Its Confusing Advance Health Directives
By Victoria L. Collier, Esq.
The Elder & Disability Law Firm of Victoria L. Collier, PC
Decatur, Georgia
Member of the national ElderCare Matters® Alliance, Georgia ElderCare Chapter
On July 1, 2007, Georgia replaced the Durable Power of Attorney for Health Care and the Living Will with one, concise document called "Georgia Advance Directive for Health Care."
The old forms were confusing and frustrating. Not knowing the difference between a Living Will and a Durable Power of Attorney for Health Care was a common problem. The anxiety of correctly filling out the forms prevented people from completing them at all.
To eliminate this problem, House of Representatives, Steve "Thunder" Tumlin, from the 38th District, introduced the new Georgia Advance Directive for Health Care.
A roundtable of over 30 professionals in the academic, medical, legislative, and legal communities, as well as state officials, ethics scholars, and advocacy groups developed the new document. The collective intent was to create a form that uses everyday, understandable language to encourage more citizens to execute advance directives for health care.
Out with the old — Durable Power of Attorney for Health Care and Living Will
The Durable Power of Attorney for Health Care and Living Will contained conflicting concepts with inconsistent and out-of-date terminology. The requirements to execute the two documents were not the same. Neither Georgia document authorized access to medical records under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").
Due to the much televised Terri Schiavo story from Florida, doctors began asking patients if they had a living will, which protect doctors from the uncertainty of what action to take if a person is in a coma, vegetative state, or an irreversible terminal condition.
However, doctors rarely asked whether the person had a health care power of attorney. The preference by doctors to ask only for a living will gave the impression that a living will was the only document needed. In reality, the power of attorney for healthcare was the more important document because it allows you to name an agent to communicate your wishes if you are not able to do so for yourself.
People typically have very strong opinions about life support and are concerned that their wishes be carried out. Knowing that someone they trust has legal authority to carry out their wishes provides great peace of mind.
The discrepancies between the two documents led to the creation of the new Georgia directive.
In with the New — Georgia Advance Directive for Health Care
The Georgia Advance Directive for Health Care provides the individual the right to control all aspects of personal care and medical treatment, including ther right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn.
The advance directive has four parts:
- Part One — Choosing the Health Care Agent. This section permits you to choose who you want to make health care decisions for you when you are not able to make them for yourself. It authorizes your agent to have access to your medical records under HIPAA.
- Part Two — Treatment Preferences. This section is similar to the old living will. It details in plain language what you would or would not want if you are in a terminal condition or a state of permanent unconsciousness.
- Part Three — Guardianship Nomination. Although a well-drafted and properly executed health care directive minimizes the need for a guardianship in most cases, it does not prevent all guardianship actions. It is extremely important for you to let the court know who you would want as your guardian should the court decide you need one. This section allows you to nominate who you think would act in your best interest as guardian.
- Part Four — Signatures. This document is not effective unless it is signed properly. You need to sign the document before two witnesses. The witnesses cannot be your named agents in the document, nor can they be individuals who will inherit from your estate, nor can they be your health care provider.
It is not required to notarize the advance directive. However, it may be beneficial to do so in the event you want to record the document with the Superior Court of the county where you live to minimize the risk of it being lost or unintentionally destroyed.
- If you do not have a health care power of attorney, then you should execute the new Georgia Advance Directive for Health Care. It is the only document that may prevent you from being subject to guardianship action through the court. In a situation where you need assistance in making health care decisions, the advance directive is essential. If the document is not executed in advance of the need to use it, it may be too late to execute one. Now, prior to a crisis, is the time to execute the Georgia Advance Directive for Health Care.
- If you already have documents in place, review them to ensure they meet your desires and your needs. Although your old documents will not become invalid because of the new Georgia Advance Directive for Health Care, old documents do refer to a law that no longer exists. Moreover, physicians will become more familiar with the new forms in a short period of time.
- After signing the new forms, you should provide a copy to your physicians and to the people you have named as your agent. You should keep several copies readily available at home so that you can take a copy with you if you are admitted to a hospital or other health care facility. Lastly, you may wish to file the original at the Superior Court in the county where you live (see "Part Four — Signatures")
- It is wise to review your documents every three years to ensure they still meet your needs and desires. Update them as necessary. For assistance in updating your documents, you may contact the Georgia ElderCare Network for a referral.