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Andre & Blaustein, LLP
Durable Power of Attorney for Health Care
and Living Will
We know that many individuals struggle with expressing to loved ones their wishes about health care in the context of a terminal illness, coma or persistent vegetative state. The complications of making difficult decisions in such stressful circumstances are often compounded when family members have differing views of what treatment is appropriate.
One can mitigate these problems, however, by providing direction through a Durable Power of Attorney and a Living Will. Because we believe it is so important, the law firm of Andre & Blaustein, LLP is pleased to provide for your use a Durable Power of Attorney for Health Care and a Living Will. For each document, we present two alternatives: a statutory form that the Georgia General Assembly approved and a second format based on that form that includes various additions that we recommend.
Durable Power of Attorney for Health Care
In 1992, the Georgia legislature approved Durable Powers of Attorney for Health Care by which an individual may grant one or more other people the authority to make all decisions regarding the individual’s medical care, including consent to surgery, transplants of organs, and the withdrawal of life sustaining procedures. The document is styled “durable” because the authority granted by the individual continues after the individual becomes incapacitated and unable to decide for himself; indeed, the doctor and hospital will not refer to the Power of Attorney until the individual cannot communicate with the doctor.
The Georgia statute followed the Cruzan case in which the United States Supreme Court held in 1990 that an individual could decline medical care even if it led to that person’s death without violating a state law against suicide. With that right established, it followed that an individual could also delegate that authority to his agent. The Durable Power of Attorney for Health Care sets forth three options a person may choose regarding whether the person desires to have life sustaining procedures withheld or withdrawn. An individual may modify any of these provisions in order to state the person’s beliefs on this subject. In the modified Durable Power of Attorney for Health Care that we have prepared, we have added to the first option a reference to items set forth in a Living Will.
A person may name one or more people to act simultaneously or in succession. We recommend that at least (1) one successor agent be named. The full instructions for how to complete and execute the Durable Power of Attorney are set forth below.
Living Will
The Living Will contains more express directions regarding a person’s desires concerning whether life-sustaining measures should be withheld or withdrawn. The Georgia legislature first approved a Living Will in 1984 and then subsequently modified it to allow for specific directions whether the withdrawal of life-sustaining measures would include suspending nutrition and hydration. You will see that we have inserted another option to that section in the Living Will we have prepared that creates flexibility.
The Durable Power of Attorney for Health Care supersedes the Living Will so that if an individual has established an agent under a Durable Power of Attorney for Health Care that agent must follow the directives under the Durable Power of Attorney for Health Care. Some people who elect the first option under the Durable Power of Attorney for Health Care find it helpful to set forth more details in the Living Will although those details could be added to the Durable Power of Attorney for Health Care.
We have attached definitions of the critical terms from the Living Will statute to our Living Will form.
Of course, one may have particular circumstances that require additional or different language in the Durable Power of Attorney for Health Care or Living Will. Please feel free to contact our firm if you have any questions or need any help with these documents.
CLICK LINKS BELOW FOR FORMS:
Durable Power of Attorney for Health Care- (Andre & Blaustein, LLP format)
Durable Power of Attorney for Health Care - (Statutory format)
Instructions for Executing Durable Power of Attorney for Health Care
Living
Will - (Andre & Blaustein, LLP format)
Living
Will - (Statutory format)
Instructions for Executing Living Will
FINANCIAL POWER OF ATTORNEY
It is an ancient precept of Anglo-Saxon law that one person may delegate authority to act regarding a financial matter to another person. Georgia law has sanctioned financial powers of attorney for many years, either specific to an individual transaction or general to all types of financial activity.
The Georgia legislature promulgated a format for a Financial Power of Attorney in 1995 so that there could be a uniform document that banks and others could accept with confidence. We have added Section 14 dealing with gifts which specifies that an agent could make tax‑free gifts on the principal’s behalf to family members to alleviate taxes or to help with medical costs. Georgia law now says that a Power of Attorney includes the authority to make gifts and we have added that section to make the statement express to satisfy the Internal Revenue Service, to make it clear to all, and to limit the scope of the authority. This may not be necessary in every person’s situation.
We have also added various additional provisions to the legislature’s form that we thought were advisable to clarify and confirm the powers.
The document provides on page 4 under Section 15 that it can be effective upon signing or it can “spring” into effect when the agent obtains either an affidavit from the person’s attending physician, or affidavits from two other physicians that state that the person is incapacitated. You should consider whether this option is appropriate. Of course, it is simpler to have the Power be effective immediately without the need to resort to physicians.
Signing the Financial Power of Attorney
The maker of the Power of Attorney should first insert his or her initials in each one of the Sections 1 through 14 of the Financial Power of Attorney that the person wishes to include within the powers granted. Obviously, we generally recommend that a person initial each of these Sections.
If one wishes to invoke the condition the Power can “spring” into effect only when the agent obtains either an affidavit from the person’s attending physician or affidavits from two other physicians that state that the person is incapacitated, then the maker and each agent should sign where indicated on page 4. If the maker does not, then the person should leave the first sentence of Section 15 and cross out the rest of that section and initial that deletion.
The person should also then indicate what arrangement the person wishes to have for compensation of the agent on page 6. We generally recommend option 1 as any compensation paid to the agent is taxable as ordinary income.
The maker should then insert the date and sign on page 6. Two witnesses (not the agent), should witness the signature and insert their addresses. If the maker of the Power has selected to give the agent the authority listed under Sections 3 and 4 of the Financial Power of Attorney, then a notary public should also witness the document on page 6. Then the agent and any successor agent should date and sign the respective “Acceptances” on page 7 and page 8, with a notary public executing those pages as well. Unfortunately, this is an overly complex execution process, but we are following the statutory form.
CLICK LINKS BELOW FOR FORMS:
Financial Power Of Attorney (Andre & Blaustein, LLP format)
Financial Power Of Attorney (Statutory format)
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 Contact Information
The Candler Building
127 Peachtree Street N.E.
Suite 700
Atlanta, Georgia 30303
Phone: (404) 653-0300
Fax: (404) 653-0338
For Detailed Directions and a map, click here...
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Notice
Notice
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The information you obtain at this site is not legal advice and we do not intend it to be legal advice. Please contact one of our attorneys for specific advice regarding your situation.
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