Understanding Advance Directives: Creating a Living Will in Georgia

Chances are, somewhere along the line, you have heard that you should have a living will. But the same people who tell you that you need one are not always quite certain about why you need it or what the document even does.

Estate planning attorneys agree with the assessment that a living will, or comparable state specific document,  is a valuable tool that should be incorporated into your estate plan. Let's explore what a living will does and how you can create one that fulfills legal requirements.

A Living Will is Nothing Like a Traditional Will

The term “living will” confuses people because it reminds them of a traditional will that directs the handling of property when the person who created the document passes away. A living will is completely different. It has nothing to do with property, and it covers actions taken during your lifetime.

With a living will, you specify that type of care you would want to receive if you are terminally ill or in another condition where you are not expected to recover and you are unable to communicate with doctors directly. This document provides instructions about your wishes. You may want doctors to use all available measures to prolong your life, or you may only want certain procedures. You may want hydration but not artificial nutrition. By explaining your choices for treatment, you let doctors and your loved ones know how to best honor your wishes for end of life care.

Part of an Advance Directive for Health Care

In Georgia,  lawmakers combined the provisions of  a living will with a medical power of attorney into a single document referred to as an advance directive for health care. This advance directive for healthcare is now the way that we include the provisions of a living will into a person's estate plan.  Because of this, we have not prepared living wills in Georgia since 2007, instead we utilize the advance directive for healthcare.  This combined document explains your choices for treatment and also authorizes an agent that you choose to make health care decisions on your behalf if you are incapacitated and unable to communicate.

A living will on its own is limited to very specific medical circumstances. The advance directive document can cover a broader range of conditions. 

Creating an Advance Directive for Healthcare (Georgia's Document That Includes Living Will Provisions)

To create an advance directive for healthcare, you must be at least 18 years old and of “sound mind” so that you can understand what you are signing. The document must be written out and signed by the creator or by someone else signing on their behalf in their presence. In addition, the document must be witnessed by two people who are legally competent, at least 18-years-old, and who meet the legal requirements. Witnesses cannot be:

• The creator's health care agent (the person with the health care power of attorney)
• Someone who will knowingly inherit anything from the creator or otherwise gain a financial benefit from the creator's death
• Someone directly involved in the creator's health care

One witness can be an employee of a facility where the creator receives care, but the other witness must be someone with no affiliation to the facility.

The language of the advance directive must comply with Georgia law, though it does not necessarily have to be on the form set forth in the Georgia code.  If it is not, however, it may not be enforceable, or there may be delays in your agent having the ability to act for you if legal proceedings are required to determine the validity of the directive.  For this reason, we encourage people to seek legal counsel for their estate planning needs, including advance directives.

Work with an Experienced Attorney to Get a Living Will that Explains Your Preferences

You have the right to determine the health care measures you want for yourself. If you are unable to explain those wishes directly to doctors in an end-of-life situation, an advance directive can fulfill that function for you, if it is drafted properly.

Peach State Wills & Trusts can prepare an advance directive for healthcare to specify your desires and ensure your wishes will be honored if and when the time comes. Schedule a consultation with us today to get this critical document prepared. Call Peach State Wills & Trusts today at 678-730-2079 to schedule an appointment, then check out our free estate planning guide.