Georgia residents have a great many tools and strategies available to meet their estate planning needs. Still, it’s sometimes easy to get so caught up in what happens to your wealth after you die, that we neglect to prepare for what happens to us if we end up incapacitated. As important as it is to ensure that your loved ones get their inheritance when you die, it’s equally important to ensure that they’re not burdened by your failure to plan for incapacitation. If you want to protect yourself and your family from the stress and frustration that a court-appointed guardianship can bring, then you need to start thinking about executing a healthcare directive while you still can.
What is a Healthcare Directive?
Georgia, like many other states, has worked to consolidate certain aspects of its legal incapacity protections – particularly when it comes to the documents used to enforce those protections. Like other states, Georgia once had two primary health care documents used to safeguard patient interests in the event of incapacitation. The first was a durable power of attorney for healthcare that enabled patients to designate someone to serve as their healthcare proxy – making important healthcare decisions on the patient’s behalf when the patient could no longer do so due to incapacity.
The second document was called the living will. As most people now know, that document enables you to provide instructions about the type of care you want to receive, so that doctors and loved ones know how your care should be managed if you lose the ability to communicate your intentions. The living will can be vital when you are unconscious or in some other state that prevents you from communicating your wishes.
In 2007, a new Georgia law went into effect, combining both documents into what is now known as the Georgia Advance Directive for Healthcare. This new document includes features from the prior documents, and provides similar protections. It should be noted, of course, that the previous documents are still acceptable as well, and will be legally recognized by courts and healthcare providers.
How Does the New Healthcare Directive Work?
The current directive has four main components that make it work. These include:
- The part that enables you to assign a healthcare agent to represent your interests and make decisions for you in the event that you are incapacitated. The directive empowers that agent to not only handle these decisions while you’re alive, but gives you the option of allowing him or her to make similar decisions about your body after you’re dead. The agent can have power over your autopsy and organ donations, and you can even choose to allow him to decide how your body is disposed of.
- The part that doubles as a living will. This part is only activated when you’re unable to express your treatment wishes due to a lack of consciousness or other inability to respond to questioning.
- The guardianship component. This section of the directive enables you to assign someone to serve as your guardian if that becomes necessary. This is a critical benefit, since it can enable you to avoid a court-appointed guardianship that could slowly consume large portions of your estate.
- The signatures. To be legally enforceable, your directive needs to be properly executed with signatures that have been duly witnessed by two other people.
When Can You Create an Advance Directive?
Many people put off creating this document, assuming they’ll have all the time in the world to get it done. The reality is that none of us can know when we’ll need these important protections – and by the time we do need them, it’s too late to create a directive. That’s because you need to be completely competent during the creation process to have the document deemed as valid. In other words, if you’re already so severely ill or injured that you can no longer manage your own decision-making, then it’s too late to create the directive.
That’s why you need to ensure that you have these vital safeguards in place now, while you’re still relatively healthy and of sound mind. It’s the only way to ensure that your family avoid the heartache and stress of a complex court process to assign a guardian to manage your affairs.
Do You Need an Attorney to Create a Directive?
Technically, you don’t actually need an attorney to draft your own healthcare directive. There are copies of acceptable directive forms available online, and many people do simply download those and fill in the blanks to complete the document. This is one of those rare instances where you can probably get away with creating your own estate planning document without too many worries. However, it may still be more sensible to simply have your attorney draft your directive.
The fact is that your advance directive is just one component in a broader incapacity and estate planning strategy. You should have a comprehensive plan that encompasses your financial, retirement, incapacity and Medicaid planning, all integrated into your broader estate plan effort. That’s the best way to ensure that you’ve covered all your planning bases and protected your interests to the fullest extent permitted by law. If you’re opting for that comprehensive approach, then it just makes sense to have the same attorney handle your advance directive too.
The important thing, however, is that you create the document so that you can protect your wellbeing and that of your loved ones. At Fouts Law Group, LLC, we’ve seen far too many cases where families lacked this essential protection, and been forced to endure the stress and conflict that guardianship proceedings can cause. There’s no reason to deal with a court-appointed guardianship if you don’t have to – and thanks to Georgia’s advance directive, you have a better option available to you. If you’d like to learn more about how out incapacity planning experts can help you create your healthcare directive, simply contact us online or give us a call at (404) 596-7520 today.
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