Advance Directive for Health Care, Durable Power of Attorney, and Living Wills

The seven year-long legal battle over the fate of Terri Schiavo is a well-known example of the expense, conflict and heartache that can occur when a person is unable to communicate with doctors and family about being kept alive with life support devices.  The drafting of an Advance Directive for Health Care can help avoid such a dilemma.  In 2007, the Georgia Legislature repealed the provisions of the Georgia Code regarding Living Wills and Durable Powers of Attorney for Health Care, and enacted the code provisions regarding Advance Directives for Health Care.
Advance Directive for Health Care

An advance directive for health care allows a person to do three things:

1.  An advance directive for health care allows a person to choose someone to make health care decisions for that person when that person cannot (or do not want to) make health care decisions for him- or herself.  The person chosen is called a health care agent. The health care agent can make decisions for the individual after the individual has passed away -- decisions regarding an autopsy, organ donation, body donation, and final disposition of the body. 

2.  An advance directive for health care also allows a person to state his or her treatment preferences if that person has a terminal condition or is in a state of permanent unconsciousness.  These stated preferences will become effective if that person is unable to communicate his or her treatment preferences to the health care provider(s). Reasonable and appropriate efforts will be made to communicate about treatment preferences before the written preferences become effective. 
 
3.  An advance directive for health care also allows a person to nominate an individual to act as guardian should one ever be needed.

 

Note: A copy of the completed advance directive for health care can be given to those who might need it, such as the health care agent, family members, and health care providers. If a person's preferences change, a new advance directive for health care can be executed to replace the old one.

 

Durable Power of Attorney for Health Care

A durable power of attorney for health care enacted before June 30, 2007 is not invalidated by the repealing of the Georgia Code sections dealing with durable powers of attorney for health care.  Effective July 1, 2007, the Georgia Code sections dealing with durable powers of attorney for health care were repealed and the proper document to draft after that is an advance directive for health care.  See O.C.G.A. § 31-32-3.
A durable power of attorney for health care allows a person to authorize an individual to direct the course of the person’s personal and medical care in the event the person becomes disabled, incompetent, or incapacitated, and therefore unable to make such decision for himself or herself.
This is different from a living will.  A living will addresses only termination of life-sustaining treatment and is effective only when a person is unable to make medical decisions and death is imminent. A durable power of attorney for health care can be effective when the person’s condition is not terminal and when death is not imminent.
The authorized person cannot override the decisions of the person executing the durable power of attorney for health care.  Only when the person executing the durable power of attorney for health care is unable to make a decision for himself or herself does the authorized person has power to make decisions.
Preferences regarding life-sustaining or death-delaying treatment and the removal of those treatments can be included in the durable power of attorney for health care.  The document can limit the authority of the authorized person so that certain procedures can never be ordered or approved by the authorized person; for example, such procedures might include blood transfusions or amputations.

Living Will

A living will  enacted before July 1, 2007 is not invalidated by the repealing of the Georgia Code sections dealing with living wills.  Effective July 1, 2007, the Georgia Code sections dealing with living wills were repealed and the proper document to draft after that is an advance directive for health care.  See O.C.G.A. § 31-32-3.
A living will is a written document allowing a person to state his or her preferences regarding his or her being kept alive with life-sustaining procedures involving nourishment and hydration.  These preferences are followed if that person:
(1) has a terminal condition,
(2) is in a coma with no reasonable expectation of regaining consciousness, or
(3) is in a persistent vegetative state with no reasonable expectation of regaining significant cognitive function.
A person may choose to state preferences for only one or two of the three above scenarios, or for all three. 
A person may choose:
(a) to decline nourishment and hydration,
(b) to decline nourishment but not hydration, or
(c) to decline neither but to decline other life-sustaining procedures to his or her body.
The person with a living will MUST notify his or her attending physician of the existence of the living will, and should send the physician a copy of the living will to be included in the person’s medical records.

Both Living Wills and Advance Directives for Health Care

MOST importantly: Both a living will and an Advance Directive for Health Care will be ineffective if a person is available who is authorized by a health care agency to deal with life-sustaining or death-delaying procedures on behalf of the person who executed the document.  Such a person might be nominated by an Advance Directive for Health Care or by a Durable Power of Attorney for Health Care. 
In other words, the documented preferences speak only when there is no authorized person available to speak.  An authorized person should follow the directions and preferences set forth in the living will or advance directive for health care – but is not required to do so.  The authorized person has a duty to act in a manner consistent with what he or she believes to be the desires and preferences of the person who drafted the document.