As part of your basic estate planning documents, you should consider preparing an Advance Directive for Healthcare. This document allows you to appoint a healthcare agent – a person who can act for you if you are incapacitated – and provides that agent and your medical providers with your treatment preferences. Here's a high-level overview of this document and its purpose.
What is an ADH? Georgia’s Advance Directive for Healthcare (“ADH”), created by legislation that became effective in 2007, combines the provisions of a living will and a durable power of attorney for healthcare. The ADH allows you to designate someone to serve as a healthcare agent and provides that agent with your treatment preferences, such as whether to be kept alive by artificial means, whether to receive nutrition by tubes, or whether to be allowed to die a natural death. The ADH grants the healthcare agent with the powers to admit or discharge you from treatment, request or consent to any type of care, and to contract for the provision of medical services and care, obligating you to be responsible for payment of those services. Importantly, the healthcare agent only has authority to act if you are not able to make decisions for yourself, or, if you choose to have the agent make decisions on your behalf. Note that the ADH does not apply to mental or emotional illness or to treatment for an addictive disease. Importantly, the ADH provides the opportunity for you to designate a back-up healthcare agent (or two), in case the first is unable or unwilling to act in this important role.
Finally, the ADH also allows for the appointment of a designated guardian over the patient, should a court determine that a guardian is necessary. You may designate your healthcare agent, or someone else, to be appointed as guardian if such an appointment should become necessary.
Can a marriage/divorce change my ADH? Yes, changes in your marital status might result in portions of your ADH not being valid. For example, if you become married after completing the ADH, your selection of a healthcare agent is not valid, unless the agent selected is your new spouse. And, if you become divorced after completing the ADH, the ex-spouse is no longer qualified to be your healthcare agent.
How is an ADH executed? The ADH must be executed with some formality, like a will. Under Georgia law, the ADH must be signed by the person making the ADH, and by two witnesses. It does not need to be notarized. The person executing (completing) the ADH must have the capacity to do so. To put it simply, this means that he has the mental ability to understand the decisions he is making and has the legal ability to execute the ADH.
Why prepare an ADH? If you become incapacitated and cannot make decisions for yourself, the ADH provides a designated person that you have chosen to make those decisions, as opposed to a person appointed by a court. And, by providing your treatment preferences, you assure your agent, and your family members, that you have considered these issues and reached a decision as to how you want to be treated, and communicate those wishes through the ADH. Hopefully, that may relieve some of the stress and pressure from the situation, and not cause the agent to “guess” how you want to be treated.
What else might I want to know? This overview has provided some basic information about the Georgia ADH and is a good start toward understanding this important planning document. If you have questions about the ADH and whether you need one, or if yours has been completed properly, please consult with an experienced estate planning lawyer for assistance. Finally, like other legal documents, you should review your ADH from time to time to make sure that it still reflects your wishes, and that it is still valid if you’ve married, divorced, or had other lifestyle changes.
Is that all there is? The ADH is just one of the documents usually completed as part of an estate planning process for individuals in Georgia. Other basic documents include a Last Will and Testament as well as a Durable Power of Attorney. If you have questions about your estate planning needs, please contact us - we'd be happy to speak with you.