Alternatives to Guardianship - With Advance Directives
by: Georgia Department of Human Resources, Division of Aging Services
ALTERNATIVES TO GUARDIANSHIP
With Advance Directives
ADVANCE DIRECTIVES
When an individual is ill or is making preparation in the event of future illness, there can sometimes be confusion about what the person's wishes are for his or her own treatment. There might be disagreement among family members about the person's decisions concerning his or her health care. Allowing an individual to make advance directions concerning his or her health care lets each person control the direction of his or her own health care and eliminates that burden from other family members who may be in disagreement or who simply may not know what to do.
Advance directives generally refer to documents like the Living Will, the Durable Power of Attorney for Health Care and the Do Not Resuscitate Order.
These documents are a means of providing one with the mechanism for carrying out decisions made about health care choices before one becomes incapacitated and can no longer make these decisions known. It is important to make these decisions while you're still able to make them, in advance of becoming incapacitated.
The individual making them can revoke any advance directive choice at any time. If the choice is expressed in a document, tear up the document and retrieve all of the copies or put the decision to revoke the document in writing and share that new decision with all who have been informed of the previous choice. If the choice has been communicated orally, one may either orally revoke the decision or put the revocation in writing and make sure all physicians, health care facilities, and individuals to whom it was given receive it.
Information about advance directive options are discussed below:
Living Will
This is a document that allows a competent person 18 years of age and older to state in advance whether or not he/she wants to be kept alive by artificial means. While this document is not used for emergency situations, it informs the medical community as well as the individual's family, what the individual's decision is regarding this matter in the following instances:
1) Persistent vegetative state with no reasonable expectations of ever recovering or regaining cognitive functions;
2) Terminal condition which will result in death; or
3) Comatose state with no reasonable expectation of ever regaining consciousness.
Durable Power of Attorney for Health Care
Allows a competent individual to choose another person or persons to act as agent(s) in making sure their health care decisions are carried out. This document differs from the Living Will in the respect that it allows decisions in every area of health care, including but not limited to the decision to terminate or not to extend life.
The agent(s) that the person chooses is under no obligation to act under the Durable Power of Attorney for Health Care; however, if the person(s) chooses to act, the action must be in accordance with the desires expressed in the document.
Decisions made in the Durable Power of Attorney for Health Care can include but are not limited to the following health care items:
1) Medicines used for treatment;
2) Cardiopulmonary resuscitation (CPR);
3) Injections;
4) Laboratory tests;
5) Surgical procedures;
6) Amputation of limbs;
7) Blood transfusions;
8) Artificial feeding and hydration;
9) Naming a choice of persons to be guardian over you if necessary; and
10) Making decisions about prolonging your life by artificial means.
Opinions differ as to whether a person needs a Living Will or a Durable Power of Attorney. If you are not sure what is best for you, discuss the matter in further detail with someone you trust such as your family, your doctor, or an attorney. However, in the state of Georgia, once a person executes a Durable Power of Attorney for Health Care, the Living Will is no longer acknowledged since there is now an agent in place to ensure that all of the principal's wishes are carried out. What is certain however is that these two written documents are available to assist us in expressing our health care decisions.
If you do not make these decisions while you can, someone else may be forced to make those decisions for you.
Do Not Resuscitate Orders
Definitions:
CPR: measures used to restore or support cardiac or respiratory function in the event of cardiac or respiratory arrest.
Candidate for Non CPR: a patient who based on a determination to a reasonable degree of medical certainty by an attending physician with the concurrence of another physician:
a) has a medical condition which can reasonably be expected to result in the imminent death of the patient;
b) is in a noncognitive state with no reasonable possibility of regaining cognitive functions; or,
c) is a person for whom CPR would be medically futile in that such resuscitate will likely be unsuccessful in restoring cardiac and respiratory function or will only restore cardiac and respiratory function for a brief period of time sot that the patient will likely experience repeated need for CPR over a short period of time or that such resuscitation would be otherwise medically futile.
Orders surrounding the administration of cardiopulmonary resuscitation (CPR) are recognized by a number of names:
- DNR
- Do Not Resuscitate
- Order Not to Resuscitate
- No Code
Every adult is presumed to have the capacity to make a decision regarding CPR and every patient shall be presumed to consent to the administration of CPR unless there is consent or authorization for the issuance of an order not to resuscitate.
Persons authorized to issue an order not to resuscitate:
- attending physician which authorizes a physician, health care professional, or emergency medical technician to withhold or withdraw CPR
- an adult person with decision making capacity (even if they lose capacity in the future)
- Appropriate authorized person: agent under a DPOA-HC; spouse; guardian of person; son or daughter 18 years of age or older; parent; brother or sister 18 years of age or older (in good faith)
- parent for a minor child
- as last resort an attending physician may issue an order not to resuscitate if: he or she has the concurrence of a second physician in writing that the patient is a candidate for nonresuscitation; an ethics committee or similar group which concurs in the opinion of the attending and the concurring physician; and the patient is receiving inpatient or outpatient treatment from or is a resident of a health care facility other than a hospice or a home health agency.
Carrying out a DNR order when the patient is not in a hospital nursing home or licensed hospice is now legal as long as the order is evidenced in writing containing the patient's name, date of the form, printed name of the attending physician, and signed by the attending physician on a form similar to the one in the law.
The patient must also be wearing an identifying bracelet on either the wrist or the ankle or an identifying necklace. The bracelet or necklace shall be substantially similar to the ID bracelets worn in hospitals and must be on an orange background with required information provided in boldface type.
Liability
No authorized person is subject to any criminal or civil liability for carrying out a DNR order in good faith as long as it was carried out in compliance with the standards and procedures set forth in the law.
Requirement to Carry Out Advance Directives
The law does not force doctors or hospitals to carry out the decision in advance directives. If a doctor informs you that he or she has decided not to carry out the request in an advance directive, the next of kin or legal guardian has the right to elect that the patient be transferred to a different doctor or if necessary, a different hospital.
Even if you lose your mental capacity after making an Advanced Directive, the directive will continue to be legally effective. Your decision will not be changed unless someone can prove that you had really changed your mind about the directive.
Other Alternatives to Guardianship
Frequently, family members feel it is necessary to pursue guardianship over a loved one in order to gain authority to assist them with financial matters or disposal of property. While it is true that guardianship is sometimes necessary to protect the health, safety and welfare of one who has lost the capacity to make sound judgments to ensure his or her own health, safety and welfare, this should be a last resort as opposed to a first response mechanism. Some other documents are discussed in the remainder of this booklet to provide other ideas to guardianship.
LAST WILL AND TESTAMENT
A Will is a person's last opportunity to legally direct how his or her property is to be disposed of at the time of death. To make a Will, you must be at least 14 years old. A person making a Will must be of sound mind to understand that he or she is making a Will and what that process means.
In Georgia, no particular format is necessary to constitute a valid Will. The law instructs that the whole document is to be considered to determine the intent of the maker of the Will.
Names used to refer to different types of Wills include:
1) Nuncupative or Oral: a Will made orally by one in the last stages of illness;
2) Holographic: a Will that is completely handwritten by the one making the Will; and
3) Self-Proved: a Will that has attached to it an affidavit by the two witnesses stating, under oath and in the presence of a Notary, that the person making the Will declared to them that the document is actually his or her Will, and that the person making the Will was the one that actually signed the Will. A self-proved Will eliminates the need for the witnesses to come testify during the probate process. A self-proving affidavit can be added to an existing Will any time before the person who made the Will dies.
A Will normally requires at least two witnesses in order to be valid and does not currently have to be notarized. Unless the Will is self-proved as described above, the witnesses' presence will be required during the Will's probation.
It is a common misperception that if a person dies without a Will the person's property goes to the state. If a person dies without a Will, as long as they leave relatives that can be found, the property that they leave does not go to the State, but instead, the State's law determines which surviving relatives are entitled to the property.
Therefore, the only danger in dying without a Will is that it is possible that relatives that you did not want to share in your estate may be in a position to receive your property at your death.
Here are some points to keep in mind concerning Wills that usually come up as questions:
- There are certain kinds of gifts that cannot be made in a Will and there are certain directions or wishes that cannot be carried out by a Will. If you are unsure about a particular gift, direction, or wish, contact the Elderly Legal Assistance Program provider in your area, the State Bar of Georgia, or a private attorney.
- Some forms for Wills that you buy in stores and from other places, may not allow you to accurately convey the wishes that you want to express and some of them are not in valid form according to Georgia Law.
- Wills executed in other states, may be valid in Georgia, but it is best to have an attorney review the Will first before making a decision to make or not to make another Will.
- A person can only have one valid Will at a time. A later executed Will revokes the previous Will, if that second Will is in valid form.
- You cannot add something to a Will by just writing the changes on the Will or by crossing out some terms that you no longer want. This will in fact destroy your Will. If there is something that you want to change, you can amend the Will by adding a "Codicil".
- A codicil is a formal document that allows you to add to or take things out of your Will. A codicil must be executed with the same formality as the Will and it too can be self-proved.
- You should review your Will periodically to make sure that it still says what you want it to say.
- It is not a good idea to leave instructions for your burial in your Will. Typically, the Will is not looked at until after you are laid to rest and any special requests that you have may be overlooked. There are now other documents such as "Details of My Final Arrangements" that can be used for this purpose.
- A Will does not have to be probated unless a court, at someone's request, orders it probated. The law only requires that a Will be filed. Any person who is in possession of another person's Will must by law file that Will with the Probate Court in that person's county of residence upon his or her death.
- Certain other things automatically revoke your Will, such as:
1) Birth or adoption of a child;
2) Divorce; or
3) Marriage.
- Your Will has no affect on you, your property or those mentioned in your Will as long as you are alive. You are not restricted from using any property mentioned in your Will and there is no legal obligation to make sure that property exists upon your death.
- Generally, estates (the name given to everything you own at your death) that are less than $1,000,000.00 are exempt from Federal Estate tax.
- An executor (male) or an executrix (female) is the one who presents your Will for probate and makes sure that the wishes expressed in your Will are carried out.
LIVING TRUSTS
An agreement that controls how your assets will be distributed after your death without going through the Court's probate proceeding is a Living Trust. The Living Trust, unlike a Will, starts to take effect while you are still alive, and should you desire, can continue to be effective after you die. All of your assets must be transferred to the Living Trust. Once your assets are transferred to the Trust, you no longer own them, they are the property of the Trust. The Trustee is the person who manages the Trust and controls the assets. You are allowed to be Trustee of your own Living Trust.
There are a number of different kinds of Living Trusts, such as:
1) Standby Trust - no assets are transferred to the Trust until you become disabled; but someone has to have the authority to transfer the assets or the Trust is empty and worthless;
2) Irrevocable Life Insurance Trusts - which plan for your life insurance policy proceeds;
3) Supplemental Benefits Trusts or Luxury Trusts - which provide transfer of assets to a person who may receive public benefits so that items not covered by the public benefits may be purchased without affecting the recipient's eligibility for the public benefit;
4) Irrevocable Trust - which once made cannot be changed or canceled; and
5) Revocable Trust - which can be amended or canceled after it is made.
Because these documents are so specialized, it is better to have an attorney prepare a Living Trust for you rather than use a form that you purchase at an office supply store. If you decide to use an office supply store form, it is a good idea to allow an attorney who has experience in this area to review the papers to make sure they have been prepared properly.
DURABLE FINANCIAL POWER OF ATTORNEY
A financial power of attorney allows you to appoint another person or persons as agent(s) to conduct business transactions for you that you could do yourself if you were not ill, disabled or otherwise unavailable. The Power of Attorney permits someone else to handle these matters for you. Powers of Attorney can be limited to a certain act or acts, or they can extend to every aspect of business that you could do for yourself. A Power of Attorney ends at your death.
Unless a power of attorney states otherwise, it is common for it to be assumed that the person giving the power intends for it to end should they develop a condition which would permanently keep them from being able to revoke the power of attorney, such as mental incapacity. It is possible to state within a power of attorney document that you do not want the power of attorney to end if you become incapacitated. A Durable Power of Attorney keeps working even if a person becomes mentally incapacitated. The Durable Power of Attorney must state within its text that it is meant to be durable and is meant to extend past mental incapacitation.
A Power of Attorney is a formal and important document. If the power of attorney grants an agent authority to transact business concerning real property (land), the power of attorney must be notarized. Powers of attorney can be filed with the court to provide notice that the power of attorney exists. Powers of Attorney can be revoked at any time prior to mental incapacitation. It is best that your Power of Attorney provide for written revocation.
Once signed, Powers of Attorney are effective and the agent is authorized to act unless something is put into the Power of Attorney that prevents the agent's authority from taking effect until a certain event happens.
The State Legislature has authorized a Statutory Form within the law as a guide for people to use. The Statutory Form can be obtained from the Georgia Division of Aging Services or you may obtain forms from office supply stores, bookstores, some banks and some courts. Otherwise, you may see an attorney to have one prepared for your specific needs.
This information is not intended to be legal advice but education to assist you in becoming aware of important issues that may affect various aspects of your life.
For answers to questions about this material, contact the DHR Division of Aging Services; 2 Peachtree Street NW, Ste 9.398; (404) 657-5319 or call:
Natalie K. Thomas
Attorney at Law
State Legal Services Developer
Division of Aging Services
2 Peachtree Street, Suite 9.398
Atlanta, Georgia 30303-3142
(404) 657-5258 or (404) 657-5328
nkthomas@dhr.state.ga.us
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