ADVANCE DIRECTIVE ISSUES

What is an “advance directive”?

Advance directives are documents in which an individual can state ahead of time that which she wants to happen in the future. The most common examples of advance directives are living wills, financial powers of attorney, medical powers of attorney, and wills.

What is a living will?

Having nothing to do with distribution of property upon death, the living will is a statutorily created document which expresses the desire to have life sustaining procedures continued or terminated in the event that a patient is in one of three critical medical conditions (coma, persistent vegetative state, terminal illness) and there is no reasonable likelihood of recovery. In addition, a living will allows the patient to indicate whether she would like to continue or terminate provision of food and water when suffering from one of these critical conditions. We often think of the decision addressed in a living will as whether we want to be “hooked up to a machine” to be kept alive when we would otherwise die naturally. As opposed to the powers of attorney addressed below (which create an agent to act for you), note that a living will speaks for itself. If you are suffering from one of these three critical conditions, your living will states exactly what you want to happen so that your loved ones do not have to make the excruciating decision regarding provision of life sustaining procedures.

What is a Durable Power of Attorney for Health Care?

Also expressly authorized by Georgia law, a durable power of attorney for health care is a document in which we designate an agent to assist with all matters relating to our person. Along with general medical decisions, other matters such as access to medical records, disposition of remains upon death, organ donation upon death, access to finances to pay for medical care, visitation rights, admission to medical care facilities, and the authority to employ and discharge medical care personnel can be addressed in this document. In addition, an agent can receive authority to make decisions regarding the provision or termination of life sustaining procedures that would otherwise be addressed in a living will. Though our agent cannot force a decision upon us while we retain mental capacity, she will have authority to act independently if we lose that capacity. In the absence of a durable power of attorney for health care, Georgia law provides a less desirable alternative which allows our spouse or nearest relative to consent to needed medical care or treatment. However, because this law does not cover the vast array of other issues included in a durable power of attorney for health care, and persons with authority under the consent statute may disagree on a critical decision, execution of a durable power of attorney for health care remains the preferred alternative.

Should I have a Living Will and Durable Power of Attorney for Healthcare?

Effective July 2007, the Georgia General Assembly created a new statutory document intended to replace both the Living Will and Durable Power of Attorney for Healthcare. The new document, called the Georgia Advance Directive for Healthcare, combines the two documents in one and serves as a wonderful guide for the agent and family when emergency medical decisions must be made. Under the new law, people can choose to either keep their old documents in place or proceed with execution of the new form. For those who do not have anything currently, it is best to proceed with the new form.

What is a Durable Power of Attorney for Property Matters?

Whereas the Georgia Advance Directive for Healthcare addresses decisions regarding our person, the durable power of attorney for property management generally allows our agent to make decisions involving our finances. The breadth of authority granted in a durable power of attorney for property management can be great or quite limited depending on the principal’s underlying goals. For example, a broad durable power of attorney for property management might include authority to conduct business involving real estate, bank and securities accounts, insurance, taxes and just about anything else imaginable. On the other hand, a limited durable power of attorney for property management can be drafted to cover just a single transaction such as the authority to conduct a closing on the sale of the family home. Similar to the durable power of attorney for health care, the agent under a durable power of attorney for property management cannot force decisions on the principal. Rather, so long as the principal retains capacity, the agent may only act in concert with the wishes of the principal. While most durable powers of attorney for property management become effective upon execution, those who do not want authority to pass until they lose capacity can opt for a springing durable power of attorney for property management. In this event, the document only becomes effective upon the occurrence of a specified event. In most cases, these documents spring to life when the principal’s treating physician is willing to state in writing that the patient has lost the ability to manage her financial affairs. Georgia law does not provide a financial counterpart to the previously discussed provision that authorizes our nearest relatives to consent to medical treatment. Instead, the only alternative available in cases where the principal has lost capacity is to seek conservatorship through an order from probate court. Because this process can be time consuming, expensive, and detrimental to family harmony, execution of a durable power of attorney for property management is advisable.

Who should be appointed agent under my powers of attorney?

Someone you know to be reliable, capable, and trustworthy. This is generally going to be a spouse or adult child, but can also be a younger sibling or friend. It is important to note that powers of attorney are executed to avoid confusion later, so choosing an agent who herself might be incapacitated in your hour of need is not advisable. It is very important to choose an agent in the medical power of attorney who lives fairly close by and can react quickly in a medical emergency. The need for geographic proximity is less in the context of the financial power of attorney.

Can I name more than one person to serve as agent under my powers of attorney?

Yes, but be careful. Again, the point of executing advance directives is to create clarity later when something has gone wrong. By naming co-agents, you create a situation where the two agents may disagree with one another. This could lead to critical loss of time and may very well impact the relationship between the two people. In most cases, it is better to name a primary agent with sole authority to act for you and then a successor agent to step in if something happens to the primary agent.

Can I revoke my power of attorney?

Yes. So long as you retain mental capacity, the powers of attorney can be revoked at any time. If there is a need to revoke a power of attorney, it is important to do so in a written document executed with formalities similar to those found in the original document. Following revocation, a copy of the document should be provided to all who are known to have a copy of the original power of attorney.

Is there a minimum level of capacity required to execute a power of attorney?

Yes. Although there is no black and white test, there is a general rule that the individual signing the document must understand its general nature and the consequences of signing it. This is sometimes a difficult question that can be clouded by illness and/or medication. A power of attorney signed by someone who does not understand it is invalid.

What if mom has lost capacity and it is too late to get a power of attorney?

If capacity is gone, then the only alternative becomes seeking guardianship through the county probate court. Similar to powers of attorney, there are two types of guardianship: one over the person and one over the property (conservatorship). Obtaining guardianship can be a time consuming, expensive, and often disharmonious process. Accordingly, it is always ideal to seek powers of attorney prior to a loss of capacity.

What if I executed these documents in another state and then moved to Georgia?

Georgia will generally recognize advance directives from another state so long as they were executed with the formality (witnesses and notary public) that would have otherwise been required in Georgia for a specific document.

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