In Georgia, there is a statutory form for an “Advance Directive for Health Care” which you can download directly from the state government’s website, or which many attorneys will prepare for you at a relatively low cost. If you did want to take care of this yourself, following are some practical guidelines for completing the form.
In PART ONE, sections 1 and 2 are where you designate your Health Care Agent (“HCA”) and your backup HCA. You should include the most complete contact information you can, to assist others in locating your HCA if needed. You are strongly encouraged to designate at least one backup HCA; you may designate as many as you want, as long as you are clear about your order of preference. It is also strongly recommended you not designate “co-HCA’s”, as this can create problems if you have two HCA’s and they do not agree regarding a decision which must be made on your behalf.
Sections 3 and 4 describe powers and guidelines for your HCA to follow.
Section 5(a) allows you to specifically state your HCA will not have the power to authorize an autopsy of your body; if you leave this blank, your HCA will have that power. Note that under certain circumstances (e.g., if you die under circumstances suggesting a crime was committed), your Advance Directive will be disregarded anyway.
Section 5(b) allows you to specifically state your HCA will not have the power to dispose of your body for use in a medical study program, and/or to donate your organs. If you leave these blank, your HCA will have that power. Regarding the latter, if you wish to be an organ donor, it is strongly suggested that you so designate on your driver’s license, as under those circumstances time will be of the essence and that’s what they will check first.
Section 5(c) allows you to designate someone other than your HCA as being authorized to make decisions regarding the final disposition of your body; leaving this section blank will give your HCA that authority. You also have the ability to specifically designate whether you wish to be buried or cremated. It is strongly recommended that if details regarding disposition of your body are important to you, then you should take the time to spell out those details in a separate document and publish that document to the people who will need it (or at least tell them where to look for it).
In PART TWO, section 6 allows you to dictate when the Advance Directive will be effective. There are two choices – when you are in a terminal condition or a state of permanent unconsciousness – and you may select either or both. In my practice, virtually all of my clients have selected both options. I would also suggest that if you do not select either option, your Advance Directive will likely never be effective (i.e., you’re wasting your time).
Section 7 is, in my opinion, the most important section of the entire Advance Directive, and also likely the decision that will require the most consideration. You have three primary choices – (A) keep me alive as long as possible and by any means necessary; (B) allow me to die naturally and don’t do anything that would keep me alive but would not cure me; or (C) don’t keep me alive if I can’t be cured, except for certain things. Under choice (C), there are four sub-choices, and you can choose any or all or none of them. They are:
- Give me nutrition by some other means if I can’t eat.
- Give me fluids by some other means if I can’t drink.
- Give me a ventilator if I can’t breathe on my own.
- Give me CPR if my heart stops.
As a practical matter, if you are inclined to mark ALL of the above, then you should seriously consider marking (A) instead of (C); and if you are inclined to mark NONE of the above, then you should seriously consider marking (B) instead of (C).
Section 8 allows you to designate or describe additional treatment preferences. This is free-form and you can describe whatever you want, in as much detail as you want. Be mindful that if you are not clear in your description, your HCA may not be able to follow your instructions, or worse, there could be litigation to resolve the ambiguity. It is strongly recommended that you discuss anything you include in this section with your HCA in advance.
Section 9 clarifies that PART TWO (i.e., sections 7 and 8) will not be effective if you are pregnant; medical professionals will keep you alive by every means necessary until the baby is born. However, if it is determined your fetus is not viable, and you have specifically designated as such in this section, then the treatment instructions in PART TWO will be carried out.
In PART THREE, you may nominate either your HCA or someone else to act as your guardian, if you need one someday. Think of a guardian’s role as similar to a parent of a minor child; this is a person who will be responsible for taking care of your person if you are in no condition to make those decisions yourself (e.g., you suffer a traumatic brain injury which seriously impairs your cognitive ability). If you want to nominate someone other than your HCA, it is recommended you provide as much contact information for that person as possible. Note that guardianship is a court-ordered process, and while it is helpful for you to nominate someone so the court can consider your wishes, your guardian will still have to petition the court for appointment, and the court will use its independent discretion and appoint whomever it deems most appropriate.
In PART FOUR, you have the ability to control when your Advance Directive will become effective, when it will expire, or both. You may have a limited purpose for the Advance Directive (e.g., you are about to have major surgery, but you are also expected to make a full recovery). But, if you leave these blank – which most of my clients do – then you are appointing your HCA immediately, and your HCA will be appointed indefinitely, until you later terminate that appointment in writing. Note that executing a new Advance Directive will terminate the prior one.
Finally, the Advance Directive requires only your signature in the presence of two disinterested witnesses who are of sound mind and are over the age of eighteen (18). For purposes of this explanation, “disinterested” essentially means the witnesses are not related to you by blood or marriage; will not benefit financially from your death, whether by inheritance or otherwise; are not involved in your medical treatment; and are not designated as your HCA or backup HCA in this instrument. Curiously, Georgia law does NOT require anyone’s signature on this form to be notarized.
Once you have fully executed your Advance Directive, be sure to keep it in a safe place. It is recommended that you make copies for your HCA and any backup HCA’s, and tell them where you keep the original and how they can obtain it if needed. Remember, your Advance Directive is for a circumstance when you cannot make or communicate medical decisions for yourself on your own, so time will typically be of the essence when it is needed.