Frequently Asked Questions
Family Lawyers: Living Wills
and Durable Power of Attorney
Family Attorneys
Meriwether & Tharp:
Information brought to you by the Family Law
Section of the State Bar of Georgia.
Foreword
The Terry Schiavo case in Florida highlighted the
importance of living wills and advance health care directives. At the
time of her death in March 2005, Ms. Schiavo, who did not have a living
will, had been under constant care for nearly 15 years after suffering
extensive brain damage in 1990. Parties for both sides spent hundreds of
thousands of dollars in legal fees and invested years in heart-wrenching
litigation over whether the feeding tube keeping Ms. Schiavo alive could
be removed.
This pamphlet discusses two methods recognized in
Georgia for ensuring that your wishes regarding your health care are
respected should you be unable to speak for yourself: the living will
and the durable power of attorney for health care (a healthcare proxy).
You have the right to control all aspects of your
personal care and medical treatment, but if you become disabled,
incapacitated or incompetent, someone else will need to make those
decisions on your behalf. Living wills and durable powers of attorney
for health care may be used to specify your wishes regarding your health
care matters and whether you want life support if you are in a condition
to require it. These documents are sometimes referred to as health care
directives or health care proxies, and may even be incorporated into one
document.
What is a
Living Will?
What is a Durable Power of Attorney
for Health Care?
What are the Duties of my Agent?
What are the Duties of Health Care
Providers such as Doctors and Hospitals?
What is the Relationship between a
Health Care Power of Attorney and Living Will?
Does HIPAA Apply to my Agent?
What is a Do Not Resuscitate (DNR)
Order?
What are the Requirements for a Valid
Health Care Power of Attorney or Living Will?
Do I Need a Lawyer to Create these
Documents?
Other Issues Concerning Health Care
Directives
Summary
What is a Living Will?
A living will is a document that allows you to
make known your wishes as to whether life sustaining or death delaying
procedures, food and/or water should be withheld or withdrawn in certain
limited circumstances. A living will is effective in the event you
suffer from one or more of the specific conditions of (1) a terminal
illness, (2) a coma with no reasonable expectation of recovery, or (3) a
persistent vegetative state with no reasonable expectation of regaining
significant cognitive function.
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What is a Durable Power of Attorney for Health Care?
A durable power of attorney for health care is a
document which allows you to authorize another person (called an agent)
to act on your behalf in matters relating to your personal care, medical
treatment, hospitalization, and health care. These powers include an
authorization to require, withhold, or withdraw any type of medical
treatment or procedure. This power of attorney is called “durable”
because it continues to be effective (and in some cases can only be
effective) upon your disability, incapacity or incompetency. Unlike a
living will, which generally only applies to end-of-life decisions, a
health care power of attorney may apply to a number of lesser, non-life
threatening situations in which a medical care decision must be made.
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What are the Duties of my Agent?
Your agent is not allowed to make health care
decisions that are different from or contrary to your wishes. However,
because the agent will speak on your behalf if you are unable to speak
for yourself, it is very important that you choose an agent who knows
what your decisions would be in certain situations.
The health care power of attorney can give your agent
the power to consent or refuse all types of medical care and treatments. These include decisions on medication, surgery, or life-sustaining or
death-delaying treatment. You may also authorize your agent to examine
and consent to disclosure of your medical records and provide for
choices for your health care based on your religious beliefs.
Your agent can decide whether to admit you to or
discharge you from a hospital or nursing home and can authorize
contracts for all types of health care services.
You may give your agent the power to make
post-death decisions including the right to authorize an autopsy or
consent to anatomical gifts. You may also specify your wishes regarding
burial or cremation.
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What are the Duties of Health Care Providers such as Doctors and
Hospitals?
Once given a copy of your health care directive,
if the health care provider believes that you are unable to understand
the general nature of the health care procedure that the provider deems
necessary, then the provider should consult with the agent named in your
power of attorney or follow the treatment wishes you expressed in your
living will. The provider must comply with the treatment decision made
by your agent or as otherwise expressed in your health care directive to
the same extent as if made by you at the time of the treatment decision.
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What is the Relationship between a Health Care Power of Attorney and
Living Will?
Generally, if you have a health care power of
attorney, your living will does not apply as long as your agent is
available to deal with the subject of life-sustaining or death-delaying
procedures on your behalf. If your agent is not available, then your
living will can specify your decision regarding the procedures.
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Does HIPAA Apply to my Agent?
The federal Health Insurance Portability and
Accountability Act (HIPAA) strictly limits access to your private
medical records. This Act protects your private medical records and
history from disclosure to third parties except upon your request or as
necessary to treat you. A well-drafted health care power of attorney
will allow your agent access to your private medical records so that he
or she will have the information necessary to make an informed decision.
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What is a Do Not Resuscitate (DNR) Order?
Living wills and health care powers of attorney are
separate from a DNR order. A DNR Order tells medical professionals not
to perform CPR. This means that doctors, nurses and emergency medical
personnel will not attempt emergency CPR if the patient’s breathing or
heartbeat stops.
DNR orders may be written for patients in a
hospital or nursing home, or for patients at home. Hospital DNR orders
tell the medical staff not to revive the patient if cardiac arrest
occurs. If the patient is in a nursing home or at home, a DNR order
tells the staff and emergency medical personnel not to perform emergency
resuscitation and not to transfer the patient to a hospital for CPR. A
DNR order is only a decision about CPR and does not relate to any other
treatment.
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What
are the Requirements for a Valid Health Care Power of Attorney or Living
Will?
- The health care power of attorney and living will
must be in writing and signed in the presence of two or more
witnesses who are at least 18 years of age and who also must sign.
There are additional signing requirements if you are in a hospital
or skilled nursing facility.
- No health care provider may act as your agent if
he or she is directly involved in your health care. “Health care
provider” means an attending doctor or other person who is licensed
to provide health care. It does not mean a family member who is
caring for you.
- The health care power of attorney and
living will do not need to be notarized to be valid.
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Do I Need a Lawyer to Create these Documents?
Georgia law provides standard forms for living
wills and health care powers of attorney and you do not have to have a
lawyer prepare them for you. Many hospitals and health care providers
have educational materials and standard forms available. However, many
of the provisions are technical and can be somewhat confusing. A lawyer
can assist you with an explanation of the terms and requirements of the
documents to ensure your wishes are reflected.
Other
Issues Concerning Health Care Directives
- Should your wishes change, you may revoke a
signed health care power of attorney and living will prior to your
disability, incapacity or incompetency.
- Unless the health care power of attorney
specifies otherwise, marriage may revoke a health care power of
attorney that designates a person other than your new spouse as your
health care agent. Similarly, divorce revokes your former spouse as
your agent unless the health care power of attorney specifies
otherwise.
- A health care power of attorney and living will
signed and witnessed in another state may be valid in Georgia;
however, if you have moved here from another state, it is wise to
have your documents reviewed by a Georgia lawyer to ensure that they
comply with Georgia law.
- A health care power of attorney may be used to
name a person who would be your guardian should a guardianship
become necessary for you.
- A living will and a health care power of attorney
do not allow your agent to make financial decisions or have the
authority to control your finances. You would need a Financial Power
of Attorney for any type of financial matters relating to your
property.
- You may appoint more than one person to act as
your agent.
- Copies of your documents should be treated
the same as if they were original documents.
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Summary
Health care powers of attorney and living wills
are useful tools for communicating your medical wishes in the event you
are unable to speak for yourself. These devices can lessen the potential
anguish of loved ones should a catastrophic event occur by eliminating
the uncertainty over what you would have desired. An estate planning
attorney can listen to you and recommend documentation to ensure that
your wishes are respected.
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This pamphlet was prepared by the Fiduciary Law
Section of the State Bar of Georgia as a public service. It is not
intended to be a comprehensive statement of law. Its purpose is to
inform, not to advise on any specific legal problem. If you have
specific questions regarding any matter contained in this pamphlet, you
are encouraged to consult a lawyer. Any written advice contained in this
pamphlet, however distributed: a) is not intended or written to be used,
and it cannot be used, by any taxpayer for the purpose of avoiding
penalties that may be imposed on the taxpayer under the Internal Revenue
Code; and b) was not written for the purpose of promoting, marketing or
recommending any entity, investment plan or other transaction.
