The Georgia Advance Directive for Health Care Act of 2007
by Dana B. Perry

On July 1, 2007, the Georgia Advance Directive for Health Care Act ("Act") went into effect.  The Act completely overhauls prior Georgia laws regarding living wills and health care powers of attorney.  The purpose of a living will is to set forth preferences regarding certain procedures that an individual does or does not want performed if the individual has a terminal condition and is incapacitated or is in a coma or persistent vegetative state.  A health care power of attorney enables an individual to grant decision-making power over that individual's health care to an agent, to be exercised when the individual is incapable of making such decisions.  One of the main results of the Act was to adopt a new unified statutory Advance Directive for Health Care form. 

Why did Georgia adopt the Act?
Georgia's General Assembly concluded that the previous statutory forms for the living will and health care power of attorney were confusing and inconsistent.  The forms contained conflicting concepts, inconsistent and out-of-date terminology, and confusing and inconsistent requirements for execution.  The General Assembly desired to follow several other states in developing a combined form of Advance Directive for Health Care.  The overall goal was to craft a unified form using understandable, everyday language in order to encourage more Georgia citizens to execute Advance Directives for Health Care. 

How does the Act affect Living Wills and Health Care Powers of Attorney executed prior to July 1, 2007?
The Act does not invalidate any living will or health care power of attorney executed before July 1, 2007.  As long as a pre-existing living will or health care power of attorney was executed in accordance with prior law, it does not need to be modified to comply with the Act.

What are the statutory requirements for executing an Advance Directive for Health Care?
Individuals signing an Advance Directive for Health Care must generally be at least 18 years of age and of sound mind.  The form must also be signed by two witnesses who are at least 18 years old and of sound mind.  Note, however, that the witnesses do not have to be together or present when the individual signs the form.  The document does not have to be notarized.  Neither witness can be selected as the health care agent, can be persons who knowingly will inherit anything from the individual or gain a financial benefit from the individual's death, or can be directly involved in the individual's health care.  No more than one of the witnesses may be an employee, agent, or medical staff member of the health care facility in which the individual is receiving health care.  A physician or health care provider who is directly involved in the individual's health care cannot serve as the health care agent.  If an individual is married, a future divorce will revoke the selection of current spouse as health care agent.  If an individual is not married, a future marriage will revoke the selection of an agent unless the person named is the new spouse. 

Does the Act allow variations from the new statutory Advance Directive for Health Care Form ?
The Act expressly allows forms outside the statutory Advance Directive for Health Care to be used to appoint a health care agent, direct the withholding or withdrawal of certain health care measures, or both, as long as the document complies with the statutory requirements set forth in the Act.  Since the Act repealed the prior Georgia code sections on living wills and health care powers of attorney, we do not recommend continued use of the old Georgia statutory forms.

When may the health care agent act under an Advance Directive for Health Care?
The health care agent only has authority to make decisions for the individual if the individual is unable to understand the general nature of the health care procedure being consented to or refused.  This standard is determined by the attending physician's good faith judgment.  While a named health care agent is under no duty to assume control of an individual's health care, if the agent chooses to act, the agent is required to use due care to act in accordance with the terms of the Advance Directive for Health Care and the person's intentions.  If the person's intentions are unclear, the agent must act in the person's best interests considering the benefits, burdens and risks of the person's circumstances and treatment options.   The health care agent or declarant is also responsible for notifying the health care provider of the existence of the Advance Directive for Health Care and furnishing a copy of the form to the health care provider.

What are some of the main duties of health care providers under the Act?
The health care provider must consult with the health care agent once the individual can no longer generally understand the procedures to be performed.  The health care provider is also required to comply with the health care agent's choices for medical treatment, as long as the decision is in accordance with the terms of the Advance Directive for Health Care, and subject to the health care provider's right to administer comfort care or pain medication.  The health care provider has an obligation to give the health care agent adequate means of access to review medical records and visit the individual.  If the health care provider is unwilling to comply with the health care agent's decisions, the health care provider must arrange for the transfer of the individual to another health care provider.

This article only provides a brief summary of some important aspects of the Georgia Advance Directive for Health Care Act.  If you have any questions about this article or would like more information about the Act, please contact a member of our Taxation and Wealth Preservation Group.