A Georgia advance directive for health care brings together two documents that state law once kept separate, a living will and a durable power of attorney for health care, into one form. This article explains who can make one, how to complete each part, the witnessing rules, and how to change or revoke it later. It is one of the documents covered in estate planning in Georgia.
What a Georgia advance directive covers
Georgia combined its older living will and durable power of attorney for health care into one instrument through the Georgia Advance Directive for Health Care Act, O.C.G.A. § 31-32-1 et seq., which took effect July 1, 2007. Directives validly signed under the earlier laws stay in force, but documents made now use the combined form.
The Act defines the roles the form uses. A health care agent is the person you appoint to make health care decisions when you are unable or choose not to make them yourself, and that authority can extend to autopsy, anatomical gifts, and the final disposition of your body under O.C.G.A. § 31-32-2. The living will part directs whether life-sustaining procedures are used if you are in a terminal condition or a state of permanent unconsciousness. Using the state’s form is optional: Georgia recognizes any advance directive that meets the same signing requirements, and it honors directives validly made in another state.
Federal law is the reason hospitals ask about these documents. Under the Patient Self-Determination Act, 42 U.S.C. § 1395cc(f), and its implementing rule at 42 C.F.R. § 489.102, hospitals, nursing facilities, hospices, and home health agencies that take part in Medicare or Medicaid must give patients written information about the right to make an advance directive under Georgia law and must record whether the patient has one. A provider cannot require you to have a directive or refuse care because you do not.
Who can make one and who can serve as your agent
Any person who is of sound mind and is either emancipated or at least 18 years old may sign a Georgia advance directive under O.C.G.A. § 31-32-5. The form asks you to state that you are emotionally and mentally capable of making it and that you understand its purpose and effect.
You may name a primary agent and, if you want a fallback, one or more back-up agents who act in the order you list them (O.C.G.A. § 31-32-2). One limit is built into the law: a physician or other health care provider who is directly involved in your care cannot serve as your agent, under O.C.G.A. § 31-32-5(d).
An agent’s powers are broad but not unlimited. Under O.C.G.A. § 31-32-7, an agent can consent to, refuse, or withdraw any type of health care, admit or discharge you from a facility, and see and disclose your medical records as your personal representative for privacy purposes. The same section withholds authority over sterilization, involuntary hospitalization, and involuntary treatment for mental illness, developmental disability, or addictive disease. An agent also cannot override a decision you are still able to make: while you can understand the general nature of a procedure, your own choice controls.
The four parts of the form
The statutory form set out in O.C.G.A. § 31-32-4 is organized into four parts, and you may fill out any or all of the first three. Part One appoints your health care agent and sets the scope of the agent’s authority. Part Two records your treatment preferences. Part Three lets you nominate a guardian in case a court ever decides one is needed; if your agent and guardian are different people, the agent has priority over health care decisions. Part Four holds your signature and the witnesses’ signatures, and you must complete it for anything else on the form to take effect.
Part Two operates only in narrow circumstances. It becomes effective only if you can no longer communicate your treatment preferences and a written determination is made, after personal examination by your attending physician and a second physician, that you are in a terminal condition or a state of permanent unconsciousness. The form also carries a pregnancy limitation: Part Two generally has no force while you are pregnant unless the fetus is not viable and you have initialed the statement asking that your preferences still be carried out.
Complete Part One and name your agent
Write the name, address, and phone numbers of the person you choose as your health care agent, and add any back-up agents in the order they should serve. Review the general powers listed in Part One so the scope of the agent’s authority is clear before you sign.
Complete Part Two and state your preferences
Initial the conditions in which you want Part Two to apply and choose among the treatment options, from extending life by all available means to allowing a natural death. The additional-statements space lets you add instructions about pain relief, specific treatments, or personal and religious values.
Complete Part Three if you want to nominate a guardian
This part is optional. You can nominate the same person you named as agent, or a different person, to serve as guardian if a court later finds one is needed.
Sign Part Four in front of two witnesses
Sign and date the form, or acknowledge your signature, in the presence of two qualifying witnesses who then sign. This step is what makes the document effective.
Distribute copies
A copy has the same legal effect as the original. Directives are commonly given to the agent, close family, and the treating physician, with a copy kept where it can be found quickly.
Signing and witnessing requirements
Signing rules are where advance directives most often go wrong, so they are worth reading closely. Under O.C.G.A. § 31-32-5, the directive must be attested and subscribed by two witnesses who are of sound mind and at least 18 years old, and who sign in your presence. The witnesses do not have to be together or present at the moment you sign.
Georgia disqualifies certain people from serving as a witness. A witness cannot be the person you chose as your health care agent or back-up agent, cannot be anyone who will knowingly inherit from you or otherwise gain a financial benefit from your death, and cannot be anyone directly involved in your health care. Not more than one of the two witnesses may be an employee, agent, or medical staff member of the facility where you are receiving care, and even that witness cannot be directly involved in your care.
When it takes effect and how to change or revoke it
A directive becomes effective when you sign it, unless you write in a later start date. Even so, your agent’s authority and the Part Two treatment preferences operate only while you are unable to make or communicate your own health care decisions. Your attending physician makes that judgment in good faith, and under O.C.G.A. § 31-32-7 your own decision governs any procedure you are able to understand.
You can revoke a Georgia advance directive at any time, without regard to your mental state or competency. O.C.G.A. § 31-32-6 lists four methods: signing a new directive with inconsistent provisions, which revokes only the parts that conflict; destroying the document, or having someone destroy it in your presence, with the intent to revoke; a signed and dated written revocation; or an oral or other clear expression of intent to revoke made in front of a witness who is at least 18 and who signs a confirmation within 30 days. If you are in a health care facility, a revocation takes effect once it is communicated to your attending physician, who records the time and date.
Two life events change the form on their own. Under O.C.G.A. § 31-32-6(b), marrying after you sign revokes the selection of an agent who is not your new spouse, and a divorce or annulment revokes the selection of your former spouse as agent, unless the directive says otherwise. Because a copy carries the same effect as the original under O.C.G.A. § 31-32-5(e), replacing an outdated directive means signing a new one and collecting or destroying the old copies.
Where the advance directive fits with your other Georgia estate documents
An advance directive controls health care decisions while you are alive and has no effect on who inherits your property. A financial power of attorney is a separate document that covers money and property decisions, and a will directs what happens to your property after death. A complete Georgia plan usually addresses each of these separately.
The property side of an estate plan is handled by other tools. Real estate can be set to pass outside probate with a Georgia transfer on death deed. Whether the estate owes any Georgia estate or inheritance tax is a common early question. And for a modest estate, it helps to know what Georgia offers in place of a small estate affidavit when settling accounts after death.
Frequently asked questions
Does a Georgia advance directive have to be notarized?
No. The form must be signed in front of two witnesses who meet the requirements in O.C.G.A. § 31-32-5, and the statutory form states plainly that it does not need to be notarized. A notary is neither required nor a substitute for the two witnesses.
What is the difference between an advance directive and a living will in Georgia?
Since July 1, 2007, Georgia uses one combined form. The living will is now Part Two of that form, which records treatment preferences, and the health care agent is named in Part One. Documents titled “living will” or “durable power of attorney for health care” that were validly signed before that date remain valid under O.C.G.A. § 31-32-2.
Can my health care agent make decisions as soon as I sign?
No. An agent acts only when you are unable to make or communicate a decision yourself, as judged in good faith by your attending physician. While you can understand the general nature of a procedure, your own decision controls under O.C.G.A. § 31-32-7.
I named my spouse as my agent. What happens if we divorce?
A divorce or annulment revokes the designation of a former spouse as health care agent unless the directive says otherwise, under O.C.G.A. § 31-32-6(b). The same section provides that marrying after you sign revokes the selection of an agent who is not your new spouse.
What happens if I do not have an advance directive in Georgia?
Without a directive, health care providers rely on Georgia’s default rules for who may consent to treatment, and a court can appoint a guardian if one becomes necessary. Making a directive lets you name the decision-maker and state your preferences yourself instead of leaving both to those defaults.
Sources
- O.C.G.A. § 31-32-1 et seq. (Georgia Advance Directive for Health Care Act)
- O.C.G.A. § 31-32-4 (statutory advance directive form)
- O.C.G.A. § 31-32-5 (execution, witnesses, and copies)
- O.C.G.A. § 31-32-6 (revocation and effect of marriage or divorce)
- 42 U.S.C. § 1395cc(f) (Patient Self-Determination Act)
- 42 C.F.R. § 489.102 (provider requirements for advance directives)