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Sept. 8, 2019

Before you are admitted as a patient to a hospital the administrative personnel are required to ask you whether you have a healthcare power of attorney and/or a living will. They are not necessarily asking because, if you answer in the negative, they are going to pull out a form for you to complete. The purpose usually is to get a copy of such document(s) into the hospital files. Even if they did give you some blank forms, waiting to deal with the issue at the hospital is waiting too long. In this article I want to explore the medico-legal issues of healthcare directives so you can work out your personal solution long before you are sick or injured.

I know of one case involving a woman in her 70's who had congestive heart failure. Her health had steadily declined for about a year. She concluded for very good reasons that the condition was eventually going to kill her and so, in the event of a heart attack, she did not want to be revived. Nevertheless, when she had a heart attack while at home and the emergency medical technicians arrived, no one had any sort of written health care directive in hand. If a document existed, it was not easily found during the emergency. The EMTs revived her and she was admitted to the hospital where she had several more heart attacks before finally succumbing to a fatal attack.

Under Georgia law there are two different documents with statutory language addressing life, death and coma situations: the Healthcare Power of Attorney and the Living Will. They have two different purposes, but they should be prepared at the same time so as to be as consistent with each other in the areas where they overlap. The Healthcare POA authorizes a person (and one or more optional "back-ups") to stand in the shoes of the patient when he or she is unable to understand and communicate with the treating physician.

The Living Will is nothing more than a letter of instructions from the patient to his or her doctors containing choices as to life support equipment, including feeding tubes, in life/death and coma situations. Before it has any effect there must be a certificate from two different physicians that the statutorily defined irreversible terminal condition or persistent vegetative state (coma) exist that warrant discontinuing artificial means of delaying the patient's death.

There are many medical situations that are not life or death, but the patient is not able to make and communicate a decision as to treatment. That is where a Healthcare Power of Attorney can be absolutely essential and a Living Will is irrelevant.

Consider the case of someone diagnosed with advanced Alzheimer's disease. The condition is neither terminal nor does it involve a coma. Without a Healthcare POA the legal alternative for dealing with the everyday decisions of both personal care and medical care is to obtain a court-appointed guardian of the person. As a practical matter a spouse of the patient might be able to get through many of those decisions without a formal legal document. But sooner or later a dispute with other family members or a reluctant health care provider will probably occur.

Experience has shown that a Healthcare POA can be a springboard for serious reflection and discussion of the medical and ethical issues surrounding treatment of severely disabled or very elderly patients. Dr. Kevorkian exploited vulnerable people, some of whom did not have terminal conditions, in promoting his brand of euthanasia that bordered on murder. These are very difficult issues that involve a person's philosophical and religious beliefs. Family members of the patient can impose their beliefs upon the patient unless he or she executes a Healthcare POA and clearly expresses their own philosophy about life and death.

It does not take a long search on the Internet to find fill-in-the-blank forms that address these issues. There are "healthcare directives" drafted by different medical institutions or foundations that go into excruciating detail about specific medical conditions and preferred treatment as to each. You can also find the Georgia statutory forms for a Healthcare POA and a Living Will. The American Bar Association's Commission on Legal Problems of the Elderly has published a tool kit for health care advance planning. I have a copy available for my clients. As of this writing it is also available at

Using these forms in a do-it-yourself fashion is better than nothing. However, I suggest that going to an attorney who has experience in this field is preferable for several reasons. First, you are doing this for the first time, the attorney is not. He or she has had the opportunity to smooth over some of the rough spots in the statutory forms and add some refinements. Second, there are many questions that need clarifying, such as after death decisions, and directions that you may not be familiar with. Also, this can be part of preparing or revising your will. (You do have an up-to-date will reflecting the changes in the law or in your own life?)