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 In 2007, the Georgia Legislature repealed the provisions of the Georgia Code regarding Living Wills and Durable Powers of Attorney for Health Care, and enacted the code provisions regarding Advance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 Effective July 1, 2007, the Georgia Code sections dealing with durable powers of attorney for health care were repealed and the proper document to draft after that is an advance directive for health care.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.

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.

Whether from a criminal conviction or civil judgment, an appeal can be a lengthy and costly process, depending on the complexity of the facts of the case and the complexity of the legal issues involved. It may be in the best interest of a person considering an appeal to seek professional legal advice as quickly as possible, because O.C.G.A. § 5-6-38(a) requires a notice of appeal to be filed within 30 days after entry of the appealable decision or judgment, or within 30 days after disposition of a motion for new trial, a motion for judgment notwithstanding the verdict, or a motion in arrest of judgment.

The practice of corporate law includes the formation and dissolution of business entities such as corporations, LLCs, and partnerships. Negotiations and drafting contracts, and other tasks are involved as well. Nathaniel Smith has drafted contracts, drafted documents for the formation of LLCs, negotiated the termination of a business partnership, negotiated international business relationships and contracts, and litigated contract disputes and other business disputes in court.

Like divorce proceedings, cases involving child custody and child support can be very difficult emotionally for everyone involved, especially the children. Georgia law requires a court to determine what child custody arrangements are in the best interests of the children involved. Once a child is old enough (at least 11), he or she can inform the court of his or her custody preferences, and at age 14 that preference becomes an election, which has a stronger influence in the outcome of a custody case. Child support is calculated with an eye toward factors including the income of each parent, the amount of money spent on raising the child(ren), and sometimes considering the amount of time the children spend with each parent.

Condemnation is the legal procedure by which the government, pursuant to its eminent domain powers, proceeds to take real property (land and anything attached to it) from its owner in exchange for compensation. Property owners can hire a lawyer to fight for more compensation than what the government first offers. Nathaniel M. Smith offers free consultations for property owners whose real estate is the subject of compensation proceedings.

Forfeiture proceedings are proceedings by which the government proceeds to take property away from its owner, often in connection to circumstances where the property was used in the commission of a crime, such as a car used in transporting or selling drugs. Under certain circumstances, the property owner may be successful in opposing the forfeiture of the property.

Criminal defense cases range from misdemeanors to serious felonies. A misdemeanor is a crime punishable by a fine of up to $1000 or less than a year behind bars or both; a high and aggravated misdemeanor is punishable by a fine larger than $1000 or less than a year behind bars or both; and a felony is a crime punishable by a large fine or more than a year behind bars, or both. In Georgia, serious felonies can be punishable by several years or even decades in jail, a life sentence, or the death penalty. A crime that may seem minor to the person committing it can become quite serious in terms of potential time behind bars when a weapon is involved – even an unloaded gun.

Georgia’s DUI laws can be found in Title 40, Chapter 6, Article 15 of the Georgia Code, O.C.G.A. §§ 40-6-390 – 40-6-397, which contains other serious traffic offenses such as Homicide by Vehicle and Feticide by Vehicle. A DUI conviction may be punished as a misdemeanor, a high and aggravated misdemeanor, or a felony. This is stated in O.C.G.A. § 40-6-391(c), along with prescribed punishments.

The lawyers at The Law Office of Nathaniel M. Smith, LLC have handled numerous divorce cases, and the firm has more than once been awarded the Client’s Choice award by Avvo.com.

Potential clients seeking to discuss their case with Candace or Nathaniel can prepare by thinking over what is desired in regard to several issues. First, if minor children are involved, what kind of custody and visitation arrangements are desired? Second, in regard to property, how should property be divided, and who should keep what property, regardless of whether the property is jointly owned or owned by only one spouse? Third, regarding debts, what bills and debts need to be paid, and who ought to pay them, and should they be divided, regardless of which spouse’s name is on that debt?

Seek legal advice before you assume that property is or is not marital property. Seek legal advice before you assume that debts are or are not marital debts.

These are the six issues that are addressed in a divorce case with children (and only the first three where there are no minor children):

1. Division of property. Who keeps what? Everything needs to be divided: the home, cars, retirement accounts, bank accounts, and everything else. Quite often, it does not matter whether the property is in one spouse’s name, or in the other’s, or both.

2. Division of debts. Who pays what? Credit cards, mortgages, and other loans need to be divided and assigned to one spouse or the other, or divided between them. Quite often, it does not matter whether the debts are in one spouse’s name, or in the other’s, or in both.

3. Alimony. If any is paid, how much, and for how long? Alimony is generally determined based on the income of the spouses, the needs of the spouses, the standard of living enjoyed throughout the marriage, and other factors listed in the Georgia Code.

4. Child custody, when there are children under the age of 18 involved. In Georgia, a child who is 14 years old or older can make an election regarding which parent he or she wants to live with. Between the ages of 11 and 13, a child can voice his or her preference to the judge if the case goes to trial. In Georgia, both legal custody and physical custody must be determined.
Legal custody is typically joint, and it involves the authority to weigh in on major life decisions and the authority to be the final decision-maker when a consensus between the parents cannot be reached regarding major life decisions. Physical custody can also be joint, or physical custody can be primarily with one parent and secondarily with the other (visitation).

5. Visitation, when there are children under the age of 18 involved. Holidays can be especially difficult to handle, but with patience a schedule can generally be worked out that is best for the children involved. Sometimes it is proper that visitation be supervised, in which case it must be determined who will be doing the supervising, where the visitation will occur, and who will pay the person doing the supervising.

6. Child support, when there are children involved. In Georgia, child support depends on the incomes of the parents. The methods of calculating child support can be explored with the forms and excel worksheets located at https://cscalc.gaaoc.us/. Sometimes deviations can be used to alter the amount of child support downward or upward from the presumptive amount calculated by the child support worksheets.
Most importantly, divorce proceedings can be difficult emotionally and mentally — not only for the two people divorcing, but also for their children and other family members. While the lawyer (or lawyers) handle the legal issues and paperwork, it can be very helpful for those going through the separation and their children to find support group at a Christ-centered church. Whether this support involves one-on-one counseling or the support of a group, emotional and spiritual support is essential to anyone going through a divorce.

Divorce is almost always difficult financially. The family income that once went into one home will now be divided between two households if it is not increased. Help from relatives and friends, often in the form of substantial financial aid, is a welcome blessing for individuals going through a divorce or separation, and almost always needed by those going through this difficult situation.

Elder Law encompasses the areas of law pertinent to individuals in their later years. Nathaniel Smith has drafted numerous wills, powers of attorney, trusts, guardianship provisions and petitions. Elder law and estate planning can also involve inter vivos gifts, retirement benefits, as well as anticipation of social security and other government monetary programs.

Estate Planning may involve only a simple will, or it may involve numerous transactions, trusts, gifts and deeds. Ideally, property should pass as its owner desires, with taxes being kept at a minimum. Wills range from the very simple, such as those leaving everything outright to a spouse, children, and other family members, to the very complex, involving numerous trusts. The simplest wills can be prepared for less than $200.00.

More complex wills, often involving one trust or more trusts, prepared in contemplation of Income Taxes, Estate Taxes, Gift Taxes, and the Generation Skipping Transfer Tax require more time and expense to be carefully and competently planned, prepared, and implemented.

Setting up an irrevocable trust must be done with caution and careful planning.  If done well, this can shield assets not only from taxes, but also from creditors who are owed money by an individual.  Creditors of an individual can attempt to confiscate that individual’s assets through legal proceedings, but if ownership of the individual’s home or financial accounts has been transferred to an irrevocable trust, those assets should be beyond the reach of the individual’s creditors.  

When the grandmother of a friend passed away, her family’s grief was not alleviated by the fact that the government gobbled up 40% of her grandmother’s possessions because her grandparents had never set up a trust or utilized other estate planning methods. My friend’s grandparents had worked hard, saved diligently and invested wisely. They were provided for in their golden years, and I believe this is part of the American Dream. I do not believe there is room in the American Dream for giving up nearly half of what you own to the government instead of passing it on to your children, grandchildren, and other loved ones.

The practice of juvenile law includes not only the defense of minors accused of crimes, but also preparing or defending against complaints by one or more individuals that a juvenile is deprived and without adequate parental care. Deprivation cases can even end up with the termination of parental rights.

Many cases involve traffic tickets with potential fines or civil claims with potential judgments that are too low to make hiring an attorney economically reasonable. For individuals who choose to represent themselves in court, a consultation with an attorney as early as possible may be worthwhile. Advice given during a consultation might involve such details as which court to file in, what documents to prepare, what deadlines and time limitations to be aware of, how to introduce evidence in court in accordance with the rules of evidence, how to respond to potential objections to evidence from the opposing party, and what to do after the judge’s ruling or jury’s verdict.

Such details as those listed above can be critical — even determinative — to the outcome of a person’s case. In 2007, I watched a man charged with speeding defend himself in court. The man had looked up laws that applied to his situation, and he had evidence he had obtained from an expert, but the rules of evidence did not allow him to present that evidence to the court in the way he tried to present it. The judge seemed sympathetic, but judges are not permitted to ignore the rules of evidence just because they feel sympathy for a party. The man’s evidence could not be considered, and the man lost his case.

The Probate Court handles guardianships of minors, guardianships of adults, conservatorships of the property of others, the revocation of guardianships, and the probating of the estate of a deceased individual by the personal representative (usually an executor named in a will).

When someone dies, their assets might move automatically to a new owner.  This happens where a beneficiary is named on an account, and in real estate with certain types of deeds.  But often an asset does not move automatically to a new owner, and the assets of someone who has passed away need to be transferred into the names of the heirs.  This involves the estate administration/probate process.

The estate administrator/executor will manage the decedent’s affairs, which in general involves paying off debts and collecting income, interest, and any amounts owed to the estate. It is extremely important that the estate’s debts are paid off in the correct order, in order of priority.  Competent legal advice should be sought to ensure no debts are paid in an incorrect manner that would result in liability for the estate administrator.

After the estate’s debts are paid and its assets are collected, the executor will distribute what remains in accordance with the terms of the will (if there is a will; if there is no will, then the law gives guidance as to who gets what).