Georgia Living Will Requirements

Introduction

Key Things to Know

1. 1

   In Georgia, a living will is not its own document. It is Part Two of the four-part Advance Directive for Health Care, the single instrument that has covered both treatment preferences and health-care-agent designation since July 1, 2007, when O.C.G.A. Title 31, Chapter 32 replaced Georgia's former separate Living Will Act and Durable Power of Attorney for Health Care Act. Standing on its own, Part Two is still your own written statement of which medical treatments you want or want withheld if you cannot communicate, naming no agent to decide for you.

2. 2

   A living will is not a last will and testament. A living will governs medical care while you are alive but unable to communicate; a last will and testament governs who inherits your property after you die. Most people preparing one eventually want the other too.

3. 3

   Part Two uses the exact same signing rule as the rest of your directive: two witnesses, at least 18 and of sound mind, attesting your signature, with no notary alternative. Stating your own treatment wishes does not require anything stricter than that shared, whole-document signing rule.

4. 4

   Your treatment preferences only take effect once two physicians, one being your attending physician, personally examine you and certify in writing that you are in a terminal condition or a state of permanent unconsciousness.

5. 5

   Artificial nutrition and hydration by tube is folded automatically into your general treatment choice, unless you pick Georgia's customized option, which lets you initial nutrition by tube and fluids by tube as their own separate choices.

6. 6

   Georgia law states your treatment preferences generally will not be carried out if you are pregnant, unless your fetus is not viable and you specifically initial that you want them carried out anyway.

7. 7

   You can change or cancel your Part Two treatment instructions at any time and in several ways, including an oral statement a witness confirms in writing within 30 days. Georgia does not make revoking your own stated wishes any harder than revoking the rest of the directive, and unlike your health care agent's designation, your treatment instructions are not automatically affected by a later marriage or divorce.

8. 8

   Georgia does not operate a state registry for advance directives. Registration is not available or required. The document is valid once properly signed and witnessed.

Georgia Requirements for Living Will

• Advance Directive for Health Care Authority (Georgia O.C.G.A. Title 31, Chapter 32)

  Georgia does not have a legally separate living-will statute. Effective July 1, 2007, O.C.G.A. Title 31, Chapter 32 (the Georgia Advance Directive for Health Care Act) replaced Georgia's former separate Living Will Act and Durable Power of Attorney for Health Care Act with one combined instrument, the advance directive for health care, that can appoint a health care agent, state treatment preferences, or both in a single four-part document with one execution and witness block.

• Capacity Requirement (Georgia O.C.G.A. Section 31-32-5(a))

  Any person of sound mind who is an emancipated minor or 18 years of age or older may execute a Georgia advance directive for health care. This capacity standard applies to the whole four-part document, not only the treatment-preferences portion.

• Witnessing Requirements (Georgia O.C.G.A. Section 31-32-5(c))

  Your directive must be attested and subscribed, in your presence, by two witnesses who are of sound mind and at least 18 years old. The witnesses do not have to be together, or present at the exact moment you sign, but each must witness your signature or acknowledgment in your presence. A witness may not be your designated health care agent, anyone who will knowingly inherit from you or otherwise gain a financial benefit from your death, or anyone directly involved in your health care, and no more than one witness may be an employee, agent, or medical staff member of the facility where you are receiving care. Georgia has no notary-acknowledgment alternative to this two-witness requirement.

• Health Care Agent Designation (Georgia O.C.G.A. Section 31-32-4, Part One)

  Part One of the same Advance Directive for Health Care lets you name a health care agent to decide for you. That is a separate function from the living-will/treatment-preferences instruction covered on this page: naming an agent gives someone else decision-making authority, rather than stating your own wishes directly. For full agent-designation guidance, see Georgia Healthcare Power of Attorney.

• Treatment Preferences (Georgia O.C.G.A. Section 31-32-4, Part Two)

  Part Two of the statutory form is where you state, directly and with no agent named, whether you want life-sustaining treatment continued or withheld if you are in a terminal condition or a state of permanent unconsciousness. Either general choice includes comfort care, including pain relief, and covers nutrition and hydration by tube automatically; only the form's customized third choice breaks these out into their own separately initialed lines.

• Terminal Condition Definition (Georgia O.C.G.A. Section 31-32-2(14))

  Georgia defines a 'terminal condition' as an incurable or irreversible condition which would result in the declarant's death in a relatively short period of time. This is one of only two trigger conditions Georgia's Act recognizes by name; Georgia does not use a third, separate 'end-stage condition' category the way some other states do.

• State of Permanent Unconsciousness (Georgia O.C.G.A. Section 31-32-2(13))

  Georgia defines a '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 shows no behavioral response to the environment. Along with terminal condition, this is one of Georgia's two named trigger conditions, each separately initialed on the statutory form.

• Revocation Procedures (Georgia O.C.G.A. Section 31-32-6)

  You may revoke all or part of your Georgia advance directive for health care, including your agent's designation, at any time and regardless of your mental state or competency, by executing a new inconsistent document, physically destroying it, signing a dated written revocation, or orally expressing intent to revoke in front of a witness 18 or older who confirms it in writing within 30 days. Unlike some states, Georgia does not require a stricter, separate method to revoke your agent's designation specifically; one uniform set of methods applies to the whole document. Marrying automatically revokes a non-spouse agent designation, and divorce or annulment automatically revokes a former spouse's designation, unless the directive says otherwise.

• Pregnancy Provisions (Georgia O.C.G.A. Section 31-32-9)

  Georgia law requires the attending physician to confirm the declarant is not pregnant before carrying out Part Two treatment preferences. If the declarant is pregnant, Part Two generally has no force or effect unless the fetus is not viable AND the declarant specifically initialed the form's 'In Case of Pregnancy' section indicating her directions should be carried out anyway. Both conditions, non-viability and the specific initialed opt-in, must be met; non-viability alone is not enough.

• Patient Self-Determination Act Compliance (42 U.S.C. Section 1395cc(f))

  Federal law requires Medicare- and Medicaid-participating hospitals, nursing homes, and other facilities to inform patients in writing of their right under Georgia law to make an advance directive, including stating their own treatment preferences.

• Guardian Nomination (Georgia O.C.G.A. Section 31-32-4, Part Three)

  Part Three of the statutory Advance Directive for Health Care form lets you nominate a person to serve as your guardian should a court ever need to appoint one, separate from your health care agent designation and your treatment preferences.

• Out-of-State Recognition (Georgia O.C.G.A. Section 31-32-5(b))

  A document covering any matter an advance directive for health care may cover, which was executed in another state and is valid under that state's law, is treated as an advance directive for health care that complies with Georgia's own execution statute. A person moving to Georgia does not need to re-execute a validly executed out-of-state directive.

• Comfort Care and Pain Relief (Georgia O.C.G.A. Section 31-32-4, Part Two)

  Georgia's statutory form states, for both the prolong-life choice and the allow-natural-death choice, that the declarant will be provided with comfort care, including pain relief, regardless of which treatment choice is initialed.

• Personal and Religious Values Statement (Georgia O.C.G.A. Section 31-32-4, Part Two, Section (8))

  Georgia's statutory form includes an optional, non-binding section where a declarant may add personal and religious values as guidance for whoever carries out the directive.

• Immunity Provisions (Georgia O.C.G.A. Section 31-32-10)

  Georgia law grants immunity from civil or criminal liability and from professional disciplinary action to health care providers and health care agents who act in good faith reliance on a validly executed advance directive for health care.

• Two-Physician Certification Requirement (Georgia O.C.G.A. Section 31-32-9(b))

  Before Part Two treatment preferences can be carried out, two physicians, one of whom must be the attending physician, must personally examine the declarant and certify in writing, based on currently accepted medical standards, that the declarant is in a terminal condition or a state of permanent unconsciousness. A single physician's determination is not sufficient in Georgia.