Health care advance directives are highly personal documents describing what care you (the patient) will receive in the future and who would be your health agent if you cannot speak for yourself. Without clear communication regarding your values, there is a significant risk that your values will not be followed. Take this example: Pateint states she would not want a breathing tube. After arriving at the hospital, doctors call the husband and ask what they should do.
Should they intubate? If they didn’t, she would likely die.
He hesitated. Was this really the scenario that his wife, now in her late 60s, was imagining when she told him that she didn’t want a breathing tube? He could not ask her now, and faced with this impossible choice, he gave the team the OK. She was intubated and sedated and transferred to our intensive care unit later that night. See Dr. Daniela J. Lamas, Opinion: When Faced with Death, People Often Change Their Minds (New York Times 1/3/2022).
Georgia’s law relating to advance directives changed, effective July 1, 2007. Prior to 2007, Georgia residents frequently executed a health care advance directive and a living will. The new law combines the old forms into a single document known as an Advance Directive for Health Care. Old documents, however, were not invalidated by the new law if executed prior to July 1, 2007. See O.C.G.A. § 31-32-3. (Of note, Georgia HB 752, pending in the 2022 legislative session, would recognize psychiatric advance directives).
Initially, the patient is always in charge of his or her care. “A health care agent shall not have the authority to make a particular health care decision different from or contrary to the declarant’s decision, if any, if the declarant is able to understand the general nature of the health care procedure being consented to or refused, as determined by the declarant’s attending physician based on such physician’s good faith judgment.” O.C.G.A. § 31-32-7(a). In that regard, the health agent has the following powers:
(1) The health care agent is authorized to consent to and authorize or refuse, or to withhold or withdraw consent to, any and all types of medical care, treatment, or procedures relating to the physical or mental health of the declarant, including any medication program, surgical procedures, life sustaining procedures, or provision of nourishment or hydration for the declarant, but not including psychosurgery, sterilization, or involuntary hospitalization or treatment covered by Title 37;
(2) The health care agent is authorized to admit the declarant to or discharge the declarant from any health care facility;
(3) The health care agent is authorized to contract for any health care facility or service in the name of and on behalf of the declarant and to bind the declarant to pay for all such services, and the health care agent shall not be personally liable for any services or care contracted for or on behalf of the declarant;
(4) At the declarant’s expense and subject to reasonable rules of the health care provider to prevent disruption of the declarant’s health care, the health care agent shall have the same right the declarant has to examine and copy and consent to disclosure of all the declarant’s medical
records that the health care agent deems relevant to the exercise of the agent’s powers, whether the records relate to mental health or any other medical condition and whether they are in the possession of or maintained by any physician, psychiatrist, psychologist, therapist, health care facility, or other health care provider, notwithstanding the provisions of any statute or other rule of law to the contrary; and
(5) Unless otherwise provided, the health care agent is authorized to direct that an autopsy of the declarant’s body be made; to make an anatomical gift of any part or all of the declarant’s body pursuant to Article 6 of Chapter 5 of Title 44, the “Georgia Revised Uniform Anatomical Gift Act“; and to direct the final disposition of the declarant’s body, including funeral arrangements, burial, or cremation.
Although other forms that comply with the law are valid,
(1) “Advance directive for health care” means a written document voluntarily executed by a declarant in accordance with the requirements of Code Section 31-32-5.
(3) “Declarant” means a person who has executed an advance directive for health care authorized by this chapter.
(4) “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.
(5) “Health care” means any care, treatment, service, or procedure to maintain, diagnose, treat, or provide for a declarant’s physical or mental health or personal care.
(6) “Health care agent” means a person appointed by a declarant to act for and on behalf of the declarant to make decisions related to consent, refusal, or withdrawal of any type of health care and decisions related to autopsy, anatomical gifts, and final disposition of a declarant’s body when a declarant is unable or chooses not to make health care decisions for himself or herself. The term “health care agent” shall include any back-up or successor agent appointed by the declarant.
(9) “Life-sustaining procedures” means medications, machines, or other medical procedures or interventions which, when applied to a declarant in a terminal condition or in a state of permanent unconsciousness, could in reasonable medical judgment keep the declarant alive but cannot cure the declarant and where, in the judgment of the attending physician and a second physician, death will occur without such procedures or interventions. The term “life-sustaining procedures” shall not include the provision of nourishment or hydration but a declarant may direct the
withholding or withdrawal of the provision of nourishment or hydration in an advance directive for health care. The term “life-sustaining procedures” shall not include the administration of medication to alleviate pain or the performance of any medical procedure deemed necessary to alleviate pain.
(10) “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.
(12) “Provision of nourishment or hydration” means the provision of nutrition or fluids by tube or other medical means.
(13) “State of permanent unconsciousness” means an incurable or irreversible condition in which the declarant is not aware of himself or herself or his or her environment and in which the declarant is showing no behavioral response to his or her environment.
(14) “Terminal condition” means an incurable or irreversible condition which would result in the declarant’s death in a relatively short period of time.
Any person of sound mind who is emancipated or who is over 18 years of age may execute an advance directive. The document must either be signed in front of a notary, or must be executed in front of two witnesses.
The following persons may not serve as witnesses: (1) the health agent who will serve; (2) anyone who would knowingly inherit anything, or who would knowingly benefit financially from the declarant’s death; or (3) anyone who is directly involved in the declarant’s health care. See O.C.G.A. § 31-32-5(c).
A copy is valid and has the same effect as an original. The document may be amended at any time, so long as it is executed properly. It may also be revoked by executing a new advance directive, by obliterating the original, by a written revocation, or by an oral revocation in front of a witness.
Unless the advance directive expressly provides otherwise, marriage revokes the appointment of any health agent other than the spouse. Similarly, divorce revokes the appointment of the former spouse as health agent.
Appointment of a guardian does not revoke an advance directive. Absent an order of the probate court or superior court having jurisdiction directing a guardian of the person to exercise the powers of the declarant under an advance directive for health care which survives disability, incapacity, or incompetency, the guardian of the person has no power, duty, or liability with respect to any health care matters covered by the advance directive for health care.
If a health agent exercises the authority granted in an advance directive, the health agent must act with due care for the benefit of the patient in accordance with the terms of the advance directive. “A health care agent shall exercise granted powers in such manner as the health care agent deems consistent with the intentions and desires of the declarant. If a declarant’s intentions and desires are unclear, the health care agent shall act in the declarant’s best interest considering the benefits, burdens, and risks of the declarant’s circumstances and treatment options.” O.C.G.A. § 31-32-7(b).
The federal Patient Self-Determination Act, 42 U.S. Code § 1395cc(f), requires most health care institutions, but not individual doctors, give patients upon admission a summary of their health care decision-making rights and the facility’s policies regarding recognition of those rights. It requires the institution to ask whether the patient has an advance directive and document that the patient does or does not have one. However, the facility cannot require the patient to execute an advance directive, and cannot discriminate based on whether there is or is not an advance directive.
See also Georgia’s Default Health Care Decision Making Statute, Health Values Questionnaire and Informed Consent and HIPAA
