What Is a Durable Power of Attorney for Health Care?

No one likes to consider the possibility of becoming ill, especially to the point of being incapacitated. Yet, according to studies, one in four people will be disabled before the age of 65 for at least a year, and nearly one out of two people over 65 will have some form of disability, according to the National Safety Council. Turning a blind eye to the possibility is not the answer – preparation is.

Planning for illness or serious accident is about both financial preparation and legal preparation. Financial preparation includes such things as savings accounts and health insurance. Legal preparation includes a Durable Health Care Power of Attorney.

As with other Powers of Attorney, with a Durable Health Care Power of Attorney, you choose an Agent to make decisions for you when you cannot do so for yourself. Since every state has its own rules regarding Durable Health Care Powers of Attorney, you will need to talk with someone who is familiar with these laws. However, there is at least one formality that goes across all states. You must sign the document in the presence of witnesses or a notary public or both. The purpose of this additional formality is to ensure that there is at least one other person who can confirm that you were of sound mind and of legal age when you made the documents.

What Does a Durable Health Care Power of Attorney Do?

A Durable Health Care Power of Attorney is a legal document that allows you to name any competent person at least eighteen years old to be your advocate and make health care decisions for you. You can pick a family member, friend or any other person you trust, but be sure the person you choose is willing to serve.

You can use the Health Care Power of Attorney to express your wishes regarding life-support measures and long-term care. It can be used to accept or refuse any treatment. If you want your Agent, often known as a patient advocate, to be able to refuse any treatment and let you die, you must say so specifically in the durable power document.

You can simply name a patient advocate. But, remember that your advocate can only have life-sustaining care stopped if you say so in your durable power. It is probably better to have written instructions because then everyone can read them and understand your wishes.

These wishes can include such things as the use of:

  • Chemotherapy
  • Specific drugs
  • Blood transfusions
  • CPR
  • Invasive tests
  • Surgery
  • IV fluids
  • Ventilator
  • And many others

Most documents state that your Agent will make all health care decisions for you when you are unable to make them for yourself. Your Agent will be able to talk to any of your caregivers for information on your health to help him make those decisions. He will probably be able to sign any legal papers for you when needed for any of your health decisions. When making decisions for you, your Agent will base them on information you have given him in the Durable Health Care Power of Attorney. If your Agent is not sure, he will make decisions based on what he thinks would be best for you. This is why it is very important to talk to your Agent about health decisions.

No Durable Health Care Power of Attorney May Mean Living Probate

If you end up incapacitated by sickness or injury without a Durable Health Care Power of Attorney, you may have to go through a “Living Probate” process. In order to get control of your health care decisions, someone must file court papers and have you declared legally incompetent. Everybody with an interest in the proceedings must be notified. Testimony will be heard determining your competency, and then the proceedings will be filed in the local newspaper and in the local courthouse.

If the court finds you to be mentally incompetent, it will appoint someone, a guardian or conservator, to act in your behalf with respect to medical care and facilities.

Isn’t a Living Will Enough?

Some people, instead of having a Durable Power of Attorney, have a Living Will. A Living Will is a simple document that tells medical providers what you wish under certain medical situations. The problem with a Living Will is that many doctors refuse to recognize it. Unless your Living Will states the exact nature of the illness or injury you are currently experiencing, they may state that your directive was not broad enough in scope. Additionally, some states do not recognize the power of Living Wills. A Living Will does not give anybody the authority to speak for you or act on your behalf. And finally, a Living Will only addresses what happens if you are terminally ill.

Is a Living Will enough? No. A Durable Health Care Power of Attorney is a much better alternative. You have the ability, before something occurs, to name an Agent you trust to legally make medical decisions for you. Not only that, as your advocate, the Agent will help make sure that your wishes are carried out.

When Does It Become Effective?

Your health care documents take effect if your doctor determines that you lack the ability, often called the “capacity,” to make your own health care decisions. Lacking capacity usually means that:

  • You can’t understand the nature and consequences of the health care choices that are available to you, and
  • You are unable to communicate your own wishes for care, either orally, in writing, or through gestures.

Practically speaking, this means that if you are so ill or injured that you cannot express your health care wishes in any way, your documents will spring immediately into effect. If, however, there is some question about your ability to understand your treatment choices and communicate clearly, your doctor (with the input of your health care Agent or close relatives) will decide whether it is time for your health care documents to become operative.

Your written wishes for health care remain effective as long as you are alive, unless you specifically revoke your documents or a court steps in (but court involvement is very rare).

What Should I Consider Before Creating a Durable Health Care Power of Attorney?

  • Who do you want to be your Agent? Legally, your agent must be at least 18 years of age. After that, the choice is up to you. You will want to be sure that the person you choose will follow your wishes to the letter. Also, keep in mind that this will be the only person allowed to make the decisions about your health care. You may also want to choose replacement Agents in case your first Agent cannot be there or is unable to make the decisions for you.
  • What kind of care do you want to receive? The Durable Health Care Power of Attorney form will have a place for you to tell caregivers what kind of care you do, and do not want. It is important to write both of these down.
  • Medical procedures you may need, or that you have liked, or disliked.
  • Wishes about any special medical conditions like coma, or terminal illness, and organ or tissue donation.

You may be able to write your beliefs about how long you want to live (quantity of life) and how you want to live (quality of life). This may include your views on health, being independent, and being in control.

Always review your Durable Health Care Power of Attorney when your life and health situation changes. This includes when you travel or move to another state. Remember you can always change or cancel your directives. But, if you make changes always give copies of the updated power to your family, health care agent, and caregivers.

Commonly Asked Questions About The Georgia Advance Directive For Health Care

What Is The Georgia Advance Directive For Health Care (“GADHC”)?

The GADHC is a written document established by the state of Georgia in 2007 in an attempt to combine the best features of the Living Will and Health Care Power of Attorney into one document.

How Does The GADHC Work?

In the event of an emergency, the GADHC would be presented to a health care provider so that they are aware of who can make health care related decisions for you in your inability to do so for yourself.

There are 3 parts to the GADHC:

  • Part 1:  Allows an Agent (or multiple Agents) to be appointed to carry out health care decisions.
  • Part 2:  Allows choices about withholding or withdrawing life support and accepting or refusing nutrition and/or hydration.
  • Part 3:  Allows one to nominate someone to be appointed as their guardian if a court determines that a guardian is necessary.

Does Part 2 Replace The Need For A DNR?

NO! One of the biggest misconceptions about Part 2 of the GADHC is that it serves as a DNR.  Part 2 simply directs your Agent in your ultimate wish should you have a terminal condition or become permanently unconscious.

Who Can Serve As My Agent?

Anyone you wish, as long as they are of sound mind and at least 18 years old.

Does My Agent Have To Be A Resident Of Georgia?

No.  Although having an agent in another state may, at times, be inconvenient, there is no residency requirement.

Are There Any Prohibited Actions By My Agent?

Yes.  Agents do not have the authority to consent to psychotherapy, sterilization, or involuntary hospitalization or treatment under the Mental Health Code, Title 37.

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