Mutual Wills or Last Will and Testaments for Unmarried Persons living together with Minor Children
Note: This summary is not intended to be an
all inclusive discussion of the law of wills in Georgia, but does contain
basic and other provisions. This summary does not include hand written
wills, or the situation where the testator cannot write his or her name.
Summary is based on the Georgia Revised probate code of 1998.
31-32-1.
This chapter shall be known and may be cited as the Georgia Advance Directive for Health Care Act. 39;
31-32-2.
As used in this chapter, the term:
(1) Advance directive for health care means a written document voluntarily executed by a declarant in accordance with the requirements of Code Section 31-32-5.
(2) Attending physician means the physician who has primary responsibility at the time of reference for the treatment and care of the declarant.
(3) Declarant means a person who has executed an advance directive for health care authorized by this chapter.
(4) Durable power of attorney for health care means a written document voluntarily executed by an individual creating a health care agency in accordance with Chapter 36 of this title, as such chapter existed on and before June 30, 2007.
(5) Health care means any care, treatment, service, or procedure to maintain, diagnose, treat, or provide for a declarants physical or mental health or personal care.
(6) Health care agent means a person appointed by a declarant to act for and on behalf of the declarant to make decisions related to consent, refusal, or withdrawal of any type of health care and decisions related to autopsy, anatomical gifts, and final disposition of a declarants body when a declarant is unable or chooses not to make health care decisions for himself or herself. The term health care agent shall include any back-up or successor agent appointed by the declarant.
(7) Health care facility means a hospital, skilled nursing facility, hospice, institution, home, residential or nursing facility, treatment facility, and any other facility or service which has a valid permit or provisional permit issued under Chapter 7 of this title or which is licensed, accredited, or approved under the laws of any state, and includes hospitals operated by the United States government or by any state or subdivision thereof.
(8) Health care provider means the attending physician and any other person administering health care to the declarant at the time of reference who is licensed, certified, or otherwise authorized or permitted by law to administer health care in the ordinary course of business or the practice of a profession, including any person employed by or acting for any such authorized person.
(9) Life-sustaining procedures means medications, machines, or other medical procedures or interventions which, when applied to a declarant in a terminal condition or in a state of permanent unconsciousness, could in reasonable medical judgment keep the declarant alive but cannot cure the declarant and where, in the judgment of the attending physician and a second physician, death will occur without such procedures or interventions. The term life-sustaining procedures shall not include the provision of nourishment or hydration but a declarant may direct the withholding or withdrawal of the provision of nourishment or hydration in an advance directive for health care. The term life-sustaining procedures shall not include the administration of medication to alleviate pain or the performance of any medical procedure deemed necessary to alleviate pain.
(10) Living will means a written document voluntarily executed by an individual directing the withholding or withdrawal of life-sustaining procedures when an individual is in a terminal condition, coma, or persistent vegetative state in accordance with this chapter, as such chapter existed on and before June 30, 2007.
(11) Physician means a person lawfully licensed in this state to practice medicine and surgery pursuant to Article 2 of Chapter 34 of Title 43; and if the declarant is receiving health care in another state, a person lawfully licensed in such state.
(12) Provision of nourishment or hydration means the provision of nutrition or fluids by tube or other medical means.
(13) State of permanent unconsciousness means an incurable or irreversible condition in which the declarant is not aware of himself or herself or his or her environment and in which the declarant is showing no behavioral response to his or her environment.
(14) Terminal condition means an incurable or irreversible condition which would result in the declarants death in a relatively short period of time.
31-32-3.
The provisions of this chapter shall not apply to, affect, or invalidate a living will or durable power of attorney for health care executed prior to July 1, 2007, to which the provisions of former Chapter 32 or Chapter 36 of this title shall continue to apply, nor shall it affect any claim, right, or remedy that accrued prior to July 1, 2007.
31-32-5.
(a) Any person of sound mind who is emancipated or 18 years of age or older may execute a document which:
(1) Appoints a health care agent;
(2) Directs the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration when the declarant is in a terminal condition or state of permanent unconsciousness; or
(3) Covers matters contained in both paragraphs (1) and (2) of this subsection.
Such document shall be in writing, signed by the declarant or by some other person in the declarants presence and at the declarants express direction, and witnessed in accordance with the provisions of subsection (c) of this Code section.
(b) When a document substantially complying with Code Section 31-32-4 is executed in accordance with this Code section, it shall be treated as an advance directive for health care which complies with this Code section. No provision of this chapter shall be construed to bar a declarant from using any other form of advance directive for health care which complies with this Code section. A document covering any matter contained in paragraph (1), (2), or (3) of subsection (a) of this Code section which was executed in another state and is valid under the laws of the state where executed shall be treated as an advance directive for health care which complies with this Code section.
(c)(1) An advance directive for health care shall be attested and subscribed in the presence of the declarant by two witnesses who are of sound mind and at least 18 years of age, but such witnesses do not have to be together or present when the declarant signs the advance directive for health care.
(2) Neither witness can be a person who:
(A) Was selected to serve as the declarants health care agent;
(B) Will knowingly inherit anything from the declarant or otherwise knowingly gain a financial benefit from the declarants death; or
(C) Is directly involved in the declarants health care.
(3) Not more than one of the witnesses may be an employee, agent, or medical staff member of the health care facility in which the declarant is receiving health care.
(d) A physician or health care provider who is directly involved in the declarants health care may not serve as the declarants health care agent.
(e) A copy of an advance directive for health care executed in accordance with this Code section shall be valid and have the same meaning and effect as the original document.
(f) An advance directive for health care may be amended at any time by a written document signed by the declarant or by some other person in the declarants
31-32-6.
(a) An advance directive for health care may be revoked at any time by the declarant, without regard to the declarant's mental state or competency, by any of the following methods:
(1) By completing a new advance directive for health care that has provisions which are inconsistent with the provisions of a previously executed advance directive for health care, living will, or durable power of attorney for health care; provided, however, that such revocation shall extend only so far as the inconsistency exists between the documents and any part of a prior document that is not inconsistent with a subsequent document shall remain unrevoked;
(2) By being obliterated, burned, torn, or otherwise destroyed by the declarant or by some person in the declarant's presence and at the declarant's direction indicating an intention to revoke;
(3) By a written revocation clearly expressing the intent of the declarant to revoke the advance directive for health care signed and dated by the declarant or by a person acting at the declarant's direction. If the declarant is receiving health care in a health care facility, revocation of an advance directive for health care will become effective only upon communication to the attending physician by the declarant or by a person acting at the declarant's direction. The attending physician shall record in the declarant's medical record the time and date when the attending physician received notification of the written revocation; or
(4) By an oral or any other clear expression of the intent to revoke the advance directive for health care in the presence of a witness 18 years of age or older who, within 30 days of the expression of such intent, signs and dates a writing confirming that such expression of intent was made. If the declarant is receiving health care in a health care facility, revocation of an advance directive for health care will become effective only upon communication to the attending physician by the declarant or by a person acting at the declarant's direction. The attending physician shall record in the declarant's medical record the time, date, and place of the revocation and the time, date, and place, if different, when the attending physician received notification of the revocation. Any person, other than the health care agent, to whom an oral or other nonwritten revocation of an advance directive for health care is communicated or delivered shall make all reasonable efforts to inform the health care agent of that fact as promptly as possible.
(b) Unless an advance directive for health care expressly provides otherwise, if after executing an advance directive for health care, the declarant marries, such marriage shall revoke the designation of a person other than the declarant's spouse as the declarant's health care agent, and if, after executing an advance directive for health care, the declarant's marriage is dissolved or annulled, such dissolution or annulment shall revoke the designation of the declarant's former spouse as the declarant's health care agent.
(c) An advance directive for health care which survives disability, incapacity, or incompetency shall not be revoked solely by the appointment of a guardian or receiver for the declarant. Absent an order of the probate court or superior court having jurisdiction directing a guardian of the person to exercise the powers of the declarant under an advance directive for health care which survives disability, incapacity, or incompetency, the guardian of the person has no power, duty, or liability with respect to any health care matters covered by the advance directive for health care; provided, however, that no order usurping the authority of a health care agent known to the proposed guardian shall be entered unless notice is sent by first-class mail to the health care agent's last known address and it is shown by clear and convincing evidence that the health care agent is acting in a manner inconsistent with the power of attorney.
31-32-7.
(a) A health care agent shall not have the authority to make a particular health care decision different from or contrary to the declarant's decision, if any, if the declarant is able to understand the general nature of the health care procedure being consented to or refused, as determined by the declarant's attending physician based on such physician's good faith judgment.
(b) A health care agent shall be under no duty to exercise granted powers or to assume control of or responsibility for the declarant's health care; provided, however, that when granted powers are exercised, the health care agent shall use due care to act for the benefit of the declarant in accordance with the terms of the advance directive for health care. A health care agent shall exercise granted powers in such manner as the health care agent deems consistent with the intentions and desires of the declarant. If a declarant's intentions and desires are unclear, the health care agent shall act in the declarant's best interest considering the benefits, burdens, and risks of the declarant's circumstances and treatment options.
(c) A health care agent may act in person or through others reasonably employed by the health care agent for that purpose but may not delegate authority to make health care decisions.
(d) A health care agent may sign and deliver all instruments, negotiate and enter into all agreements, and do all other acts reasonably necessary to implement the exercise of the powers granted to the health care agent. A health care agent shall be authorized to accompany a declarant in an ambulance or air ambulance if in the opinion of the ambulance personnel protocol permits a passenger and to visit or consult in person with a declarant who is admitted to a health care facility if the health care facility's protocol permits such visitation.
(e) The form of advance directive for health care contained in Code Section 31-32-4 shall, and any different form of advance directive for health care may, include the following powers, subject to any limitations appearing on the face of the form:
(1) The health care agent is authorized to consent to and authorize or refuse, or to withhold or withdraw consent to, any and all types of medical care, treatment, or procedures relating to the physical or mental health of the declarant, including any medication program, surgical procedures, life-sustaining procedures, or provision of nourishment or hydration for the declarant, but not including psychosurgery, sterilization, or involuntary hospitalization or treatment covered by Title 37;
(2) The health care agent is authorized to admit the declarant to or discharge the declarant from any health care facility;
(3) The health care agent is authorized to contract for any health care facility or service in the name of and on behalf of the declarant and to bind the declarant to pay for all such services, and the health care agent shall not be personally liable for any services or care contracted for or on behalf of the declarant;
(4) At the declarant's expense and subject to reasonable rules of the health care provider to prevent disruption of the declarant's health care, the health care agent shall have the same right the declarant has to examine and copy and consent to disclosure of all the declarant's medical records that the health care agent deems relevant to the exercise of the agent's powers, whether the records relate to mental health or any other medical condition and whether they are in the possession of or maintained by any physician, psychiatrist, psychologist, therapist, health care facility, or other health care provider, notwithstanding the provisions of any statute or other rule of law to the contrary; and
(5) Unless otherwise provided, the health care agent is authorized to direct that an autopsy of the declarant's body be made; to make an anatomical gift of any part or all of the declarant's body pursuant to Article 6 of Chapter 5 of Title 44, the Georgia Anatomical Gift Act'; and to direct the final disposition of the declarant's body, including funeral arrangements, burial, or cremation.
(f) A court may remove a health care agent if it finds that the health care agent is not acting properly.
31-32-8.
Each health care provider and each other person with whom a health care agent interacts under an advance directive for health care shall be subject to the following duties and responsibilities:
(1) It is the responsibility of the health care agent or declarant to notify the health care provider of the existence of the advance directive for health care and any amendment or revocation thereof. A health care provider furnished with a copy of an advance directive for health care shall make such copy a part of the declarant's medical records and shall enter in the records any change in or termination of the advance directive for health care by the declarant that becomes known to the health care provider. A health care provider shall grant a health care agent adequate access to a declarant when a declarant is admitted to any health care facility. Whenever a health care provider believes a declarant is unable to understand the general nature of the health care procedure which the provider deems necessary, the health care provider shall consult with any available health care agent known to the health care provider who then has power to act for the declarant under an advance directive for health care;
(2) A health care decision made by a health care agent in accordance with the terms of an advance directive for health care shall be complied with by every health care provider to whom the decision is communicated, subject to the health care provider's right to administer treatment for the declarant's comfort or alleviation of pain; provided, however, that if the health care provider is unwilling to comply with the health care agent's decision, the health care provider shall promptly inform the health care agent who shall then be responsible for arranging for the declarant's transfer to another health care provider. A health care provider who is unwilling to comply with the health care agent's decision shall provide reasonably necessary consultation and care in connection with the pending transfer;
(3) At the declarant's expense and subject to reasonable rules of the health care provider to prevent disruption of the declarant's health care, each health care provider shall give a health care agent authorized to receive such information under an advance directive for health care the same right the declarant has to examine and copy any part or all of the declarant's medical records that the health care agent deems relevant to the exercise of the health care agent's powers, whether the records relate to mental health or any other medical condition and whether they are in the possession of or maintained by any physician, psychiatrist, psychologist, therapist, health care facility, or other health care provider, notwithstanding the provisions of any statute or rule of law to the contrary; and
(4) If and to the extent an advance directive for health care empowers the health care agent to direct that an autopsy of the declarant's body be made; to make an anatomical gift of any part or all of the declarant's body pursuant to Article 6 of Chapter 5 of Title 44, the Georgia Anatomical Gift Act'; or to direct the final disposition of the declarant's body, including funeral arrangements, burial, or cremation, the decisions of the health care agent on such matters shall be deemed the act of the declarant or of the person who has priority under law to make the necessary decisions, and each person to whom a direction by the health care agent in accordance with the terms of the agency is communicated shall comply with such direction to the extent it is in accord with reasonable medical standards or other relevant standards at the time of reference.
31-32-9.
(a) Prior to effecting a withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration from a declarant pursuant to a declarant's directions in an advance directive for health care, the attending physician:
(1) Shall determine that, to the best of that attending physician's knowledge, the declarant is not pregnant, or if she is, that the fetus is not viable and that the declarant has specifically indicated in the advance directive for health care that the declarant's directions regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration are to be carried out;
(2) Shall, without delay after the diagnosis of a terminal condition or state of permanent unconsciousness of the declarant, take the necessary steps to provide for the written certification of the declarant's terminal condition or state of permanent unconsciousness in accordance with the procedure set forth in subsection (b) of this Code section;
(3) Shall make a reasonable effort to determine that the advance directive for health care complies with Code Section 31-32-5; and
(4) Shall make the advance directive for health care and the written certification of the terminal condition or state of permanent unconsciousness a part of the declarant patient's medical records.
(b) The procedure for establishing a terminal condition or state of permanent unconsciousness is as follows: two physicians, one of whom shall be the attending physician, who, after personally examining the declarant, shall certify in writing, based upon conditions found during the course of their examination and in accordance with currently accepted medical standards, that the declarant is in a terminal condition or state of permanent unconsciousness.
(c) The advance directive for health care shall be presumed, unless revoked, to be the directions of the declarant regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration.
(d) The attending physician who fails or refuses to comply with the declarant's directions regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration shall advise promptly the health care agent, if one is appointed, and, otherwise, next of kin or legal guardian of the declarant that such physician is unwilling to effectuate such directions. The attending physician shall thereafter at the election of the health care agent, if one is appointed, and, otherwise, next of kin or legal guardian of the declarant:
(1) Make a good faith attempt to effect the transfer of the declarant to another physician who will comply with the declarant's directions regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration; or
(2) Permit the health care agent, if one is appointed, and, otherwise, next of kin or legal guardian of the declarant to obtain another physician who will comply with the declarant's directions regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration.
31-32-10.
(a) Each health care provider, health care facility, and any other person who acts in good faith reliance on any direction or decision by the health care agent shall be protected and released to the same extent as though such person had interacted directly with the declarant as a fully competent person. Without limiting the generality of the foregoing, the following specific provisions shall also govern, protect, and validate the acts of the health care agent and each such health care provider, health care facility, and any other person acting in good faith reliance on such direction or decision:
(1) No such health care provider, health care facility, or person shall be subject to civil or criminal liability or discipline for unprofessional conduct solely for complying with any direction or decision by the health care agent, even if death or injury to the declarant ensues;
(2) No such health care provider, health care facility, or person shall be subject to civil or criminal liability or discipline for unprofessional conduct solely for failure to comply with any direction or decision by the health care agent, as long as such health care provider, health care facility, or person promptly informs the health care agent of such health care provider's, health care facility's, or person's refusal or failure to comply with such direction or decision by the health care agent. The health care agent shall then be responsible for arranging the declarant's transfer to another health care provider. A health care provider who is unwilling to comply with the health care agent's decision shall continue to provide reasonably necessary consultation and care in connection with the pending transfer;
(3) If the actions of a health care provider, health care facility, or person who fails to comply with any direction or decision by the health care agent are substantially in accord with reasonable medical standards at the time of reference and the provider cooperates in the transfer of the declarant pursuant to paragraph (2) of Code Section 31-32-8, the health care provider, health care facility, or person shall not be subject to civil or criminal liability or discipline for unprofessional conduct for failure to comply with the advance directive for health care;
(4) No health care agent who, in good faith, acts with due care for the benefit of the declarant and in accordance with the terms of an advance directive for health care, or who fails to act, shall be subject to civil or criminal liability for such action or inaction; and
(5) If the authority granted by an advance directive for health care is revoked under Code Section 31-32-6, a person shall not be subject to criminal prosecution or civil liability for acting in good faith reliance upon such advance directive for health care unless such person had actual knowledge of the revocation.
(b) No person shall be civilly liable for failing or refusing in good faith to effectuate the declarant's directions regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration.
(c) No physician or any person acting under a physician's direction and no health care facility or any agent or employee thereof who, acting in good faith in accordance with the requirements of this chapter, causes the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration from a declarant or who otherwise participates in good faith therein shall be subject to any civil or criminal liability or guilty of unprofessional conduct therefor.
(d) No person who witnesses an advance directive for health care in good faith and in accordance with subsection (c) of Code Section 31-32-5 shall be civilly or criminally liable or guilty of unprofessional conduct for such action.
(e) Any person who participates in the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration pursuant to an advance directive for health care and who has actual knowledge that such advance directive for health care has been properly revoked shall not have any civil or criminal immunity otherwise granted under this chapter for such conduct.
31-32-11.
(a) The making of an advance directive for health care containing a declarant's directions regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration, shall not, for any purpose, constitute a suicide. If the declarant's death results from the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration in accordance with the terms of an advance directive for health care, the death shall not constitute a suicide or homicide for any purpose under any statute or other rule of law.
(b) The making of an advance directive for health care shall not restrict, inhibit, or impair in any manner the sale, procurement, issuance, or enforceability of any policy of life insurance, annuity, or other contract that is conditioned on the life or death of the declarant nor shall it be deemed to modify the terms of an existing policy of life insurance, annuity, or other contract that is conditioned on the life or death of the declarant, notwithstanding any term of the policy to the contrary. No policy of life insurance, annuity, or other contract that is conditioned on the life or death of the declarant shall be legally impaired or invalidated in any manner by the making of an advance directive for health care pursuant to this chapter or by the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration from an insured declarant, nor shall the making of such an advance directive for health care or the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration operate to deny any additional insurance benefits for accidental death of the declarant in any case in which the terminal condition of the declarant is the result of accident, notwithstanding any term of the policy to the contrary.
31-32-12.
(a) No physician, health care facility, or health care provider and no health care service plan, insurer issuing disability insurance, or self-insured employee welfare benefit plan shall require any person to execute an advance directive for health care as a condition for being insured for or receiving health care services.
(b) No health care facility shall prepare or offer to prepare an advance directive for health care unless specifically requested to do so by a person desiring to execute an advance directive for health care. For purposes of this subsection, the Department of Corrections shall not be deemed to be a health care facility.
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Cite as OCGA 31-32-12
History. Amended by 2017 Ga. Laws 52, 57, eff. 7/1/2017.
Added by 2007 Ga. Laws 48, 2, eff. 7/1/2007.
31-32-13.
All persons shall be subject to the following sanctions in relation to advance directives for health care, in addition to all other sanctions applicable under any other law or rule of professional conduct:
(1) Any person who, without the declarant's consent, willfully conceals, cancels, or alters an advance directive for health care or any amendment or revocation of the advance directive for health care or who falsifies or forges an advance directive for health care, amendment, or revocation shall be civilly liable and guilty of a misdemeanor;
(2) Any person who falsifies or forges an advance directive for health care of another or who willfully conceals or withholds personal knowledge of an amendment or revocation of an advance directive for health care with the intent to cause a withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration contrary to the intent of the declarant and thereby, because of such act, directly causes life-sustaining procedures or the provision of nourishment or hydration to be withheld or withdrawn and death thereby to be hastened shall be subject to prosecution for criminal homicide as provided in Chapter 5 of Title 16;
(3) Any person who requires or prevents execution of an advance directive for health care as a condition of ensuring or providing any type of health care services to an individual shall be civilly liable and guilty of a misdemeanor; and
(4) Any person who willfully witnesses an advance directive for health care knowing at the time he or she is not eligible to witness such advance directive under subsection (c) of Code Section 31-32-5 or who coerces or attempts to coerce a person into making an advance directive for health care shall be civilly liable and guilty of a misdemeanor.
31-32-14.
(a) Nothing in this chapter shall impair or supersede any legal right or legal responsibility which any person may have to effect the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration in any lawful manner.
(b) Nothing in this chapter shall be construed to condone, authorize, or approve mercy killing or to permit any affirmative or deliberate act or omission to end life other than to permit the process of dying as provided in this chapter. Furthermore, nothing in this chapter shall be construed to condone, authorize, or approve abortion.
(c) This chapter shall create no presumption concerning the intention of an individual who has not executed an advance directive for health care to consent to the use or withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration in the event of a terminal condition or state of permanent unconsciousness.
(d) Except to the extent provided in an advance directive for health care and subject to the health care agent's duty to exercise granted powers in such manner as the health care agent deems consistent with the intentions and desires of the declarant pursuant to subsection (b) of Code Section 31-32-7, a declarant's directions in an advance directive for health care regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration shall be ineffective as long as there is a health care agent available and willing to make decisions for and on behalf of the declarant regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration when the declarant is in a terminal condition or state of permanent unconsciousness.
(e) Unless an advance directive for health care provides otherwise, a health care agent who is known to a health care provider to be available and willing to make health care decisions for a declarant has priority over any other person, including any guardian, to act for the declarant in all matters covered by the advance directive for health care.
(f) Nothing in this chapter shall affect the delegation of a parent's power to control the health care of a minor child.
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