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Before You Get Sick

It seems like everyone has heard of the "Living Will." For about 15 years it was one of two statutes in Georgia that addressed the situation of an incapacitated patient who had an irreversible condition that was expected to cause death in a relatively short time, or was in a coma or persistent vegetative state that was reasonably believed to be permanent. That's a lot of legalese, but it's not easy to describe a medical situation where it might be morally and legally justifiable to withhold life-sustaining medical treatment from a patient.

The second Georgia statute was the Durable Power of Attorney for Healthcare which, like the living will statute, established a method for a person to state in advance preferences for medical care and treatment under "hopeless" circumstances. It also enabled any adult to designate an "Agent" to carry out those wishes and take charge of medical care in the event of the patient's incapacity, even when the situation was not so life-threatening.

This dual track approach ended on July 1, 2007, when the "Georgia Advance Medical Directive for Health Care Act" took effect. The statute prospectively abolished both the living will and the durable power of attorney for health care. However, all such documents executed before July 1, 2007 were "grandfathered" and are still completely effective and legally valid.

I was never much of a fan of Living Wills and I am glad to see them go. The document was not a will and it had nothing to do with living. It functioned as a letter to the doctors who might be treating the letter-writer sometime in the future. It stated that, if and when two doctors certified in writing that the patient was in an (irreversible) coma, persistent vegetative state or had a "terminal condition" (the last being defined by statute), life sustaining and death delaying treatment could be discontinued. Instructions could also be included on whether to continue nutrition or hydration supplied by artificial means.

There are at least two problems with this approach. First, it placed too much responsibility upon the doctors. Any outcome would depend upon the decision of the doctors as to whether there was any hope of recovery. A few years ago a Wall Street Journal column related the story of an elderly patient whose family had to stiff-arm a doctor who urged them "to pull the plug" on dear old dad. They finally invoked his religious preferences (Jewish) as a reason to continue treatment. The two-fold irony was that he had not been an observant Jew in years and that he recovered from his illness, despite the doctor's pessimism.

The second problem is that the Living Will did not address the medical decisions that must be made in the days or weeks prior to the "end-stages" of any illness or hospitalization. Who will take charge of the patient's treatment when he or she has reduced capacities because of the illness and/or medications?

In 1991 this issue of designating (in advance) a "proxy" to speak for the incapacitated patient was addressed with the Georgia statute authorizing a Durable Power of Attorney for Health Care. It enabled anyone to designate an agent and include the same "life and death" preferences but without requiring any doctor's certificate. It also granted authority to someone to make medical choices in non-life-threatening situations. Lastly, a person could address in advance post-mortem matters of autopsy, organ donation and disposition of remains, such as cremation.

The new Georgia Advance Medical Directive for Health Care explicitly replaced both the Living Will and the Durable Power of Attorney for Health Care with the stated goal of using "understandable and everyday language." The language may be better but the document is so loaded up with details that one could spend 45 minutes just getting through the selection of different options.

The larger problem is that it getting into that level of detail, and doing it successfully, requires practically prophetic powers. It calls for highly detailed plans in very hypothetical situations that might occur years from now. It provides the illusion of being organized. I call it an illusion because without a context of the age and general health of the patient combined with the state of medical technology, all the choices that seem definitive are usually just guesswork. That's the case because most people are executing the document years in advance of any need for its utilization.

My suggestion on how to deal with the new statute is to exercise considerable independence in choosing the options set out in the statutory form and do not hesitate to use only parts of the statutory form. The statute specifically provides that the use of its form is not required and that some parts of it are optional.

I also would point to the analysis contained in a law journal article I read a few years ago on medical powers of attorney. Going for the shock factor, the author opined that a medical power of attorney is "not worth the paper it is written on." The true value of the document is the discussion among the family members that preparing the medical power will prompt. This is an ongoing process that only starts in the attorney's office and can continue for years. The reason I mention an attorney is that most people deal with these issues in conjunction with preparing and executing their wills. Planning for how to handle a disabling medical condition is just as much a part of the estate planning process as a last will and testament.

One major improvement in the new form is the emphasis given on the cover page to the subject of what to do with the document after it is signed. We're dealing with a document that could be crucial in a medical emergency or an unexpected hospitalization. It should not be buried in a file drawer or a safety deposit box at the bank.

A few years ago I had to dig out from storage my file copy of a medical power of attorney for a client who was in a medical crisis in the hospital after heart surgery. The original could not be found. There was a lot of anxiety until I found my file copy. Therefore, copies of the Advance Directive should be given to the person and the persons designated as "backup agents." Even the family physician might want a copy. It should available from multiple sources when needed. I recently scanned a copy into the computer for a client so it could be stored electronically and available (with password protection) through an Internet connection.

When you really need one of these documents it is likely to be too late to prepare and execute it. That's why it's called "Advance," as in "do it in advance." This is one of those cases where an ounce of prevention is worth a pound of cure.

This site is established for general information only. The discussion of legal issues should not be construed to constitute formal legal advice nor the formation of a lawyer/client relationship. Persons accessing this site are encouraged to seek independent counsel for advice regarding their individual legal issues. Persons not residing in the State of Georgia should be aware that the law in other states may differ materially from some of the legal principles discussed here.

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