Basic Estate Planning in Georgia: Advance Directive for Healthcare

Written by: Joel Richard Beck

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As part of your basic estate planning documents, you should prepare an Advance Directive for Healthcare. This document allows you to appoint a health-care agent—a person who can act for you if you are incapacitated—and provides that agent and your medical providers with your treatment preferences. This brief article discusses basic principles of the Advance Directive for Healthcare as it relates to Georgia law.

ADH provisions

Georgia's relatively new document called an Advance Directive for Healthcare (ADH) combines the provisions of a living will and a durable power of attorney for health care. The ADH allows a person to designate someone to serve as a health-care agent and provides that agent with his or her treatment preferences, such as whether to be kept alive by artificial means, whether to receive nutrition by tubes, or whether to be allowed to die a natural death. The ADH grants the health-care agent the powers to admit or discharge the patient from treatment, request or consent to any type of care, and to contract for the provision of medical services and care, obligating the patient to be responsible for payment of those services. Finally, the ADH also allows for the appointment of a designated guardian over the patient, should a court determine that a guardian is necessary. You may designate your health-care agent or someone else as guardian, if necessary.

Importantly, the health-care agent only has authority to act if the patient is not able to make decisions for himself. Also, the ADH does not apply to mental or emotional illness or to addictive disease.

Be aware that changes in your marital status might result in portions of your ADH being invalidated. For example, if you become married after completing the ADH, your selection of a health-care agent is not valid unless the agent selected is your new spouse. And, if you become divorced after completing the ADH, the ex-spouse is no longer qualified to be your health-care agent. The ADH allows you to designate a back-up health-care agent in case the first is unable or unwilling to act.

The ADH is similar to a will in that it must be executed with some formality. Under Georgia law, the ADH must be signed by the person making the ADH and by two witnesses. It does not need to be notarized.

Why an ADH is necessary

Why prepare an ADH? If you become incapacitated and cannot make decisions for yourself, the ADH allows your designated agent to make those decisions. If you do not have an ADH, those decisions will be made by a court-appointed agent. And, by providing your treatment preferences in the ADH, you assure your agent, and your family members, that you have considered these issues and reached a decision as to how you want to be treated. Ideally, that will relieve some of the stress and pressure from the situation, and not require the agent to guess how you want to be treated.

If you've put off your basic estate planning, including a will and an ADH, do it now. Contact a competent attorney to discuss your situation, and get legal advice geared towards your specific situation.