Living Wills In Georgia

We get lots of questions from people about living wills – such as do they need one, is the one they have current, and how would their existing living will be interpreted under Georgia law.

Georgia statutes define certain terms used in the Georgia living will forms.  You may find it useful in reviewing your current living will to review the definitions in this article.

We find that many people are confused by the language of the Georgia living will, especially as it relates to the choices about withholding nourishment and/or hydration.  Some people want neither nourishment nor hydration, some want both nourishment and hydration but no other life-sustaining procedures, and some want hydration but not nourishment.  These are very important decisions that you need to make for yourself in consultation with your legal advisor.

Very often, husbands and wives make different choices on their living wills, and that is fine.  The important thing is for you to make an informed choice, and properly complete your Georgia living will form.  These are individual documents, not a “husband and wife” document.  Your decisions should be your own, and not someone else’s choice for you.   The living will records your choice for your family members, loved ones, and for your medical treatment providers.

In recent weeks, we have seen a large increase in young singles and young couples preparing living wills.  This is entirely appropriate, as tragedy or illness can strike at any age.  Sometimes people make different choices for their living will at different stages of their lives, depending on their health, family responsibilities, and changing perspective.

There are Georgia laws about who is eligible to be a witness to your living will.  For example, your living will cannot be witnessed by someone related to you by blood or marriage, someone who would receive something under your will, or who would inherit something from you under Georgia law if you did not have a will.  Also, there are restrictions about certain physicians or their employees, those who would have a claim against your estate, or someone that is directly financially responsible for your medical care acting as a witness.

There has been very little media attention to one of the provisions in the Georgia living will form.  This relates to whether a woman would want to be kept alive if she were pregnant.

Most adults want a durable power of attorney for health care in addition to their living will.

If you want to make an appointment to prepare a living will, durable power of attorney for health care, or discuss your current documents with an attorney at Hindson & Melton LLC, call 770-350-9102 or 770-512-8383.  

The definitions that follow are taken from Title 31 of the Georgia Code, Chapter 32, Living Wills, at § 31-32-2.

As used in this [Living Wills] chapter, the term:
(1) "Attending physician" means the physician who has been selected by or assigned to the patient and who has assumed primary responsibility for the treatment and care of the patient; provided, however, that if the physician selected by or assigned to the patient to provide such treatment and care directs another physician to assume primary responsibility for such care and treatment, the physician who has been so directed shall, upon his or her assumption of such responsibility, be the "attending physician."

(2) "Coma" means a profound state of unconsciousness caused by disease, injury, poison, or other means and for which it has been determined that there exists no reasonable expectation of regaining consciousness. The procedure for establishing a coma is as follows: two physicians, one of whom must be the attending physician, who, after personally examining the declarant, shall certify in writing, based upon conditions found during the course of their examination, that:

(A) The declarant has been in a profound state of unconsciousness for a period of time sufficient for the declarant's physicians to conclude that the unconscious state will continue; and

(B) There exists no reasonable expectation that the declarant will regain consciousness.

(3) "Competent adult" means a person of sound mind who is 18 years of age or older.

(4) "Declarant" means a person who has executed a living will authorized by this chapter.

(5) "Hospital" means a facility which has a valid permit or provisional permit issued under Chapter 7 of this title and which is primarily engaged in providing to inpatients, by or under the supervision of physicians, diagnostic services and therapeutic services for medical diagnosis, treatment, and care of injured, disabled, or sick persons.

(6) "Life-sustaining procedures" means any medical procedures or interventions, which, when applied to a patient in a terminal condition or in a coma or persistent vegetative state with no reasonable expectation of regaining consciousness or significant cognitive function, would serve only to prolong the dying process 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" may include, at the option of the declarant, the provision of nourishment and hydration, but shall not include the administration of medication to alleviate pain or the performance of any medical procedure deemed necessary to alleviate pain.

(7) "Living will" means a written document voluntarily executed by the declarant in accordance with the requirements of Code Section 31-32-3 or 31-32-4.

(8) "Patient" means a person receiving care or treatment from a physician.

(9) "Persistent vegetative state" means a state of severe mental impairment in which only involuntary bodily functions are present and for which there exists no reasonable expectation of regaining significant cognitive function. The procedure for establishing a persistent vegetative state is as follows: two physicians, one of whom must be the attending physician, who, after personally examining the declarant, shall certify in writing, based upon conditions found during the course of their examination, that:

(A) The declarant's cognitive function has been substantially impaired; and

(B) There exists no reasonable expectation that the declarant will regain significant cognitive function.

(10) "Physician" means a person lawfully licensed in this state to practice medicine and surgery pursuant to Article 2 of Chapter 34 of Title 43.

(11) "Reasonable expectation" means the result of prudent judgment made on the basis of the medical judgment of a physician.

(12) "Skilled nursing facility" means a facility having a valid permit or provisional permit issued under Chapter 7 of this title and which provides skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis.

(13) "Terminal condition" means incurable condition caused by disease, illness, or injury which, regardless of the application of life-sustaining procedures, would produce death. The procedure for establishing a terminal condition is as follows: two physicians, one of whom must be the attending physician, who, after personally examining the declarant, shall certify in writing, based upon conditions found during the course of their examination, that:

(A) There is no reasonable expectation for improvement in the condition of the declarant; and

(B) Death of the declarant from these conditions will occur as a result of such disease, illness, or injury.

Prepared by Joy Melton