Who Will Speak for You?

We don't always like to acknowledge or discuss our mortality but the fact remains that life the way we know it could change at any moment. That is why estate planning is so important. Estate planning is more than just having a will or setting up a trust. It also helps you plan for situations when you are still alive but can't communicate or make decisions, such as if you are in a state of unconsciousness. The question becomes who will speak for you and make decisions on your behalf?

Under the Georgia Advance Directive for Health Care Act, you have the right to make choices about your health care in advance through a legal document known as an advance directive for health care. An advanced directive allows you to  speak when you are unable or unwilling to do so by allowing you to list your wishes about medical care and treatment and/or allowing you to choose a person to make medical decisions for you.

An advanced directive for health care also allows you nominate a person to serve as your guardian in case a court decides that a guardian should be appointed. A court will appoint a guardian for you if the court finds that you are not able to make significant responsible decisions for yourself regarding your personal support, safety or welfare. You may nominate your health care agent to be your guardian, but you have are free to nominate someone else. You should be aware that the advanced directive for health care does not give your health care agent or guardian the power to manage your property or financial affairs.

You may feel like the content of the advanced directive for health care sounds familiar but you thought there was a different title. That's because people used to have living wills to provide instructions on treatment preferences for a terminal condition and state of permanent unconsciousness and a durable power of attorney for health care to appoint a health care agent. However, in 2007, the advanced directive for health care replaced both the durable power of attorney for health care and living wills in Georgia. If you have a durable power of attorney for health care or a living will that was executed before 2007, they remain effective. However, it would be a good idea for you to replace them with an advanced directive. 

It is important for pregnant women or women who may become pregnant to understand that the directives they select in their advance directive may not be carried out. If the baby is developed enough that the baby could survive post delivery, any directives that would result in withholding or withdrawing life sustaining treatments will not be honored. Even if the baby is not developed enough to survive delivery, a pregnant woman's directives will not be honored unless she has specifically noted that she does not want life sustaining treatment if she is pregnant with a non-viable infant.  

Once you have completed your advanced directive you should give a copy to your health care provider, especially if you are going in for any procedure or surgery, including giving birth. You should also give a copy to the person you designate as your health care agent and your family. It is also a good idea to keep something in your wallet that would inform medical providers that you have an advanced directive and who to contact in case of emergency.

Like all estate planning, your advanced directive will only be honored if it complies with Georgia law.  Your advanced directive for health care can be revoked or amended at any time and may be revoked as a matter of law upon marriage or divorce. While the decision to have an advanced directive is completely voluntary, if you have a properly executed advanced directive for health care, you can ease the burden on your love ones during an already difficult period. Your advanced directive for health care can eliminate confusion about your wishes and diffuse any disagreement among family members over health care decisions. 

Contact the Atlanta based law firm of Simmons Rogers, LLC for help with your advanced directive and all of your other estate planning needs. We work with clients all across the state of Georgia and we would love to work for you.

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