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Friday, August 12, 2011

Advance Directive


The “Georgia Advance Directive for Health Care Act” is codified at O.C.G.A. § 31-32-1 et al.  O.C.G.A. § 31-32-2 defines an “Advance directive for health care” as “a written document voluntarily executed by a declarant in accordance with the requirements of Code Section 31-32-5.”  Prior to this advance directive law, Georgia had durable powers of attorney for health care and living wills.[1]  Those prior documents executed before June 30, 2007 are still valid, but it may be advisable to still update them as the current documents are more internally consistent and detailed.[2]
“Any person of sound mind who is emancipated or 18 years of age or older may execute” an advance directive.  The document must be “in writing, signed by the declarant or by some other person in the declarant's presence and at the declarant's express direction, and witnessed . . .”[3]  Declarants are free to use other documents which substantially comply with the code and can also use the documents of another state which was validly executed in accordance with the law of that other state.[4]  This “advance directive for health care shall be attested and subscribed in the presence of the declarant by two witnesses who are of sound mind and at least 18 years of age, but such witnesses do not have to be together or present when the declarant signs the advance directive for health care.”[5]  The witnesses cannot be a person “selected to serve as the declarant's health care agent” or who “[w]ill knowingly inherit anything from the declarant or otherwise knowingly gain a financial benefit from the declarant's death” or who “[i]s directly involved in the declarant's health care.”[6]  In addition, “[n]ot more than one of the witnesses may be an employee, agent, or medical staff member of the health care facility in which the declarant is receiving health care.”[7]  As a practice note, many hospitals and other facilities have policies against their employees serving as witnesses or notaries, and therefore it is advisable to bring your own witnesses, as it may not always be possible to find a helpful bystander who will serve as a witness.  It should also be noted that “[a] physician or health care provider who is directly involved in the declarant's health care may not serve as the declarant's health care agent.”[8]  Unlike with last will and testaments, where copies can be more problematic, “A copy of an advance directive for health care executed in accordance with this Code section shall be valid and have the same meaning and effect as the original document.”[9]  Any amendments must be executed with the same requirements as above.


[1] O.C.G.A. § 31-32-2 (“‘Durable power of attorney for health care’ means a written document voluntarily executed by an individual creating a health care agency in accordance with Chapter 36 of this title, as such chapter existed on and before June 30, 2007.” “‘Living will” means a written document voluntarily executed by an individual directing the withholding or withdrawal of life- sustaining procedures when an individual is in a terminal condition, coma, or persistent vegetative state in accordance with this chapter, as such chapter existed on and before June 30, 2007.”)
[2] O.C.G.A. § 31-32-3. (“Living wills, claims, rights, or remedies executed or accrued prior to July 1, 2007 The provisions of this chapter shall not apply to, affect, or invalidate a living will or durable power of attorney for health care executed prior to July 1, 2007, to which the provisions of former Chapter 32 or Chapter 36 of this title shall continue to apply, nor shall it affect any claim, right, or remedy that accrued prior to July 1, 2007.”)

[3] O.C.G.A. § 31-32-5.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.

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