What Is An Advance Directive For Health Care?

An Advance Directive is a written statement that is made in advance of (before) a serious illness or injury. An Advance Directive indicates your choices about how you want medical decisions made to be made about your health IF you are unable to make the choices on your own. Most people understand the term “Living Will” which is the earliest form of an Advanced Directive. Another common form of an Advance Directive is a "Durable Power of Attorney for Health Care." Although these two documents share a common objective, they are different. People often ask their attorney if both are needed (possibly in an effort to save a few dollars on their Estate Planning fees). The way the documents were initially crafted by state legislatures, the answer is that you have better protection when you execute both documents. Now Georgia and many states are combining these documents into a single Advance Directive document. In Georgia that document is called the Georgia Advanced Directive for Health Care and it became effective on July 1, 2007.



The Georgia Advanced Directive for Health Care allows you to make your choices for your health care and to name someone to make those choices for you, IF you become unable to make decisions about your medical treatment. The law expressly recognizes the right of an individual to control all aspects of his or her personal care and medical treatment, including:


  1. the right to insist upon medical treatment,
  2. decline medical treatment, or
  3. direct that medical treatment be withdrawn.



In other words, the Georgia Advanced Directive for Health Care enables you to have some control over your future medical care. You can say "yes" to treatment you want, or say "no" to treatment you do not want to have performed on you.

O.C.G.A. § 31-32-2 (5) defines “Health Care" as any care, treatment, service, or procedure to maintain, diagnose, treat, or provide for a Declarant’s physical or mental health or personal care.

O.C.G.A. § 31-32-2 (9) defines "Life-Sustaining Procedures," as any 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 "lifesustaining procedures" shall not include the administration of medication to alleviate pain or the performance of any medical procedure deemed necessary to alleviate pain.

O.C.G.A. § 31-32-2 (12) defines "Provision of Nourishment or Hydration" as the provision of nutrition or fluids by tube or other medical means.

O.C.G.A. § 31-32-2 (13) defines "State of Permanent Unconsciousness" as 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.

O.C.G.A. § 31-32-2 (14) defines "Terminal Condition" as an incurable or irreversible condition which would result in the Declarant’s death in a relatively short period of time.

Anyone 18 years or older may execute a Georgia Advanced Directive for Health Care. Your Georgia Advanced Directive for Health Care MUST BE IN WRITING and does NOT need to be notarized although you may elect to have it notarized.

There is no requirement that you use the exact form of the document prepared by the Georgia Legislature. A document that "substantially complies" with Georgia form will be honored. A copy of your Georgia Advanced Directive for Health Care is valid ~ as valid as the original.

You can amend your Georgia Advanced Directive for Health Care at any time. However, the amendment must be in writing and dated. The easiest thing is to make a new one and eliminate any uncertainty.

You may revoke your Georgia Advanced Directive for Health Care at anytime. A marriage automatically revokes your Georgia Advanced Directive for Health Care unless you state in your Georgia Advanced Directive for Health Care that your pending marriage will not revoke your Georgia Advanced Directive for Health Care. A divorce or annulment automatically terminates your former spouse’s right to act as your agent but does not revoke the reminder of your Georgia Advanced Directive for Health Care.

A Georgia Advanced Directive for Health Care is “durable”, meaning it remains effective even if you lose mental capacity and are unable to indicate your health care choices (which is one primary of the purposes of the document).

If a guardian is appointed for you, your Agent under your Georgia Advanced Directive for Health Care still has the authority to make your health care decisions (unless the Probate Court enters and order terminating your Agent’s powers). Your Agent would have to be notified of a hearing before that could happen and clear and convincing evidence would have to be produced showing that your Agent is acting in a manner “inconsistent” with your instructions in your Georgia Advanced Directive for Health Care.

Note: If you can understand and communicate regarding your health care, your Agent cannot overrule your medical decisions.

Your Agent can sign all documents and contracts necessary to get you the care you authorize in your Georgia Advanced Directive for Health Care. You may want consider limiting this power by withholding power to enter into binding arbitration agreements with your health care providers. Arbitration agreements could deprive you of your right to a jury trial if you are injured through negligence of your health care provider.

Prior to termination of “life-sustaining procedures”, your physician must certify that you are not pregnant or that the fetus is not viable.

The procedure for establishing a “terminal condition” or “state of permanent unconsciousness” is as follows: two physicians (one of whom shall be the attending physician) after personally examining the you, shall certify in writing, based upon conditions found during the course of their examination and in accordance with currently accepted medical standards, that the you are in fact in a terminal condition or state of permanent unconsciousness as defined in O.C.G.A. § 31-32-2.

Unless revoked, a Georgia Advanced Directive for Health Care shall be presumed to be your directions regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration.

Making or using the Georgia Advanced Directive for Health Care is not suicide and cannot restrict or limit any policy of insurance.

An Advanced Directive executed in “another” state will be honored if it was validly executed in that state.

IMPORTANT: Witnesses must NOT be 1. your health care agent or 2. anyone who would inherit property from you. Only one witness can be an employee of your health care provider.

Note: Your physician cannot be your health care agent.

You cannot be required to execute a Georgia Advanced Directive for Health Care as a condition for receiving health care.

David Danda is an attorney, comedian and national marketing coach and columnist who helps businesses market more effectively by leveraging technology. He can be reached at 770.938.0977, or through his website at www.daviddanda.com.

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