Ask an Atlanta Trust Attorney: How Good is Your Living Will?

Ask an Atlanta Trust Attorney: How Good is Your Living Will?

living wills in georgia

One of the many documents a trust attorney in the Atlanta area will encourage clients to put together is a living will.  These documents have been considered incredibly important in both the legal and medical fields for 40+ years.  A living will provides you with the opportunity to make your medical wishes known should you become incapacitated and unable to make decisions at the time.  A living will often considers things like whether or not you want to be on life support and how you feel about doctors taking “extraordinary” measures to prolong your life.

There are a lot of positives to a living will.  For example, it can take some of the burden off of your loved ones who are likely already in a state of shock over your incapacitation.  In addition to worrying about your health and grieving over your condition, the people closest to you may also be called upon to make incredibly difficult decisions regarding your health care.  Choosing to end life support for a spouse or parent is a heart-wrenching decision, and if you can take that burden from your loved one, then why wouldn’t you?

A recent Wall Street Journal article takes a deeper look into the usefulness of living wills, and some of their findings are contrary to popular belief about these documents.  You can take a look at the article, “A New Look at Living Wills,” but some of the basic points made include:

  • Living wills may be too “black and white,” while actual medical emergencies often fall into a “gray area.”
  • Doctors have a limited ability to predict a patient’s outcome, so it is difficult to use their best guesses as a measure against which to determine if life support should be withdrawn or not.
  • In addition to doctors and patients, ethicists are weighing in on the usefulness of living wills, and many of them are leaning away from using them at all.

One of the biggest problems with a living will is that the wording can be rather vague.  This can be especially true if you use a fill-in-the-blank document you find online, rather than working with a knowledgeable trust attorney in Atlanta.  In order to make your living will as helpful to your loved ones and medical staff as possible, it may be a good idea to be very thorough and to define what you mean by things like “quality of life” and “reasonable chance.”

Many people are moving toward these more comprehensive living wills, although it is certainly difficult to anticipate every situation that can arise.  According to the WSJ articles, some people are now foregoing the living will altogether and opting instead to have their estate planning attorney assist them in naming a health care agent with whom you discuss your views and values before leaving the decision-making responsibilities in his or her hands.

If this is something you would like to explore further in your particular situation, or you have further questions about creating a living will here in Atlanta, please feel free to give our Marietta estate planning and elder law firm a call at 770-425-6060 and ask to schedule a complimentary Georgia Family Treasures Planning Session with the mention of this article.

Atlanta Living Will Attorney Helps Clients Plan for an Unexpected Disability

Atlanta Living Will Attorney Helps Clients Plan for an Unexpected Disability

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Here in Atlanta, living will attorneys know full-well the ramifications of not planning ahead for an unexpected disability.  Even those clients who understand the importance of estate planning tend to overlook what would happen if they should become unable to care for themselves.  It’s not the happiest thought, but the reality of not having a living will can make the situation considerably worse for both you and your family.

A major disability can be devastating to an entire family, both emotionally and financially.  Pre-planning for the possibility can reduce some of the heartache that often accompanies these situations.

Medical Concerns

You may assume that your spouse would simply make decisions for you if and when a major problem takes place.  Ask yourself, if he or she really wants to be responsible for some of those decisions. For example, if you were in a coma, how would your spouse react to making the choice of whether or not to stop life support?  Even if your loved ones know your wishes, simply having them in a formal document can remove a considerable burden and amount of potential guilt.

A living will attorney can help you to draw up these documents so that your family does not have to make these choices.  The attorney can also assist by offering insight into situations you likely wouldn’t have considered.  Are you opposed to a blood transfusion?  Are you adamantly against ending life support?  What needs to happen if you become mentally disabled?  Who should be given power of attorney over your other health-related issues?

Financial Concerns

Having a major illness or injury is very expensive and can keep you from working during and after hospitalization.  Your Atlanta GA living will attorney will also advise you on what needs to happen financially if you are unable to take care of your own needs.  For example, you will likely set up a power of attorney, as well as to determine how long-term care will be paid for.  Will you need to sell your house?  Will you be eligible for disability insurance?  These are all questions that the living will attorney will go over with you.

There are plenty of other considerations that need to be addressed by a Atlanta Georgia living will attorney.  From what will happen to your children to where you might end up in nursing care, there are choices that need to be made.  Planning in advance with your attorney in Atlanta will ensure that your wishes are being followed if the time should come.

If you are ready to get started in creating a plan that will protect you and your family should incapacity or disability occur, give our office a call at 770-425-6060 and ask to schedule a Georgia Family Treasures Planning Session.  These sessions are normally $750, but you can come in free with the mention of this article.  However, these sessions are limited to 10 per month so call today!

April 16th is National Health Care Decisions Day: Tell Someone Your Most Personal Wishes for Medical Care

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April 16th is National Health Care Decisions Day, which encourages local residents to have open conversations with their loved ones about their most personal wishes for health care, including thoughts on life support, feeding tubes, organ donation, long-term care and what is “qualify of life”.

ATLANTA, GEORGIA (03/30/2012)-  April 16th is National Health Care Decisions Day, which encourages local residents to have tough conversations with their loved ones about their most personal wishes for medical care. 

These conversations include wishes and preferences about life support, feeding tubes, organ donation and what you consider to be “quality of life” in the event of a long-term incapacity. 

According Steve Worrall, an estate planning attorney in Atlanta, Georgia, these conversations may be hard to have, but it’s the only way to make sure your wishes are honored and that your loved one’s stay together in a medical emergency. 

“I’ve seen many families torn apart trying to figure out what their loved one ‘would have wanted’ during a medical crisis,” says Worrall.  “In some cases, families even spend years battling in court for control, much like Terri Shiavo’s family did,” he adds. 

Worrall says strife over health care decisions can be avoided by letting someone know your wishes and clearly documenting them.   He says that legal tools such as a Power of Attorney, Health Care Directive and HIPAA forms are easy ways to let doctors and family members know how to manage your care if the unthinkable happens. 

“Medical crises can be emotional, and the only way to guarantee your wishes are honored and that your family stays together is to let everyone know exactly what you want and who you trust to make those decisions. It will make life easier for everyone in a true emergency,” says Worrall. 

For more information on documenting your personal health care wishes or about National Health Care Decisions Day, please visit Worrall’s website (www.georgiafamilylaw.com) or the National Health Care Decisions Day website (http://www.nhdd.org/). 

NHDD

 

Add Estate Planning To Your List of Resolutions This Year, Says Marietta Wills Lawyer

Dreamstime_17212044 Resolving to get your legal affairs in order is one of the most important things you can do to make sure your family, wishes and assets are protected if something unexpectedly happens to you this year. 


Marietta, Georgia-   While many people focus on getting out of debt or getting organized for the New Year, estate planning is an equally important personal finance goal that should make every adult’s to-do list.

That’s because according to Marietta estate planning lawyer, Steve Worrall, far too many area residents are without plans to protect their family, wishes and assets should something unexpectedly happen to them.  A recent Lawyers.com survey further reveals that only 35% of adults have a basic will or other estate planning documents in place should death or incapacity occur.

 “Contrary to popular belief, estate planning isn’t just for the rich,” says Worrall.  “At a bare minimum, every adult needs a basic will, power of attorney and health care directives in place to avoid a legal and financial nightmare if something unexpectedly happens to them,” he  adds.

So what are these documents and how do they help you in a time of emergency?  Worrall explains the following:

  • Will- A will is a document that specifies what should happen to your assets if you pass away.  A will may also contain guardian nominations to dictate who will care for your minor children if something unexpectedly happens to you.  
  • Trust- A trust is a legal entity that can hold title to property. With your assets securely placed in a trust, you can minimize your financial exposure to lawsuits, divorce and bankruptcy while alive.  Upon death, a trust will keep your affairs private and out of the probate court.  It also allows a great deal of control for people who do not want their inheritance going outright to their heirs if something unexpectedly happens.
  •  Power of Attorney- A power of attorney or POA gives explicit permission for someone to access your personal accounts, pay your bills and handle all other financial and legal affairs if you are incapacitated in an accident but do not die.   Under the current privacy laws, even a spouse may have a hard time accessing personal information without such documentation in place.
  • Advanced Health Care Directive- Also known as a living will, this document specifies your healthcare wishes if you are incapacitated in an accident and unable to speak for yourself.  Such wishes may range from whether you want certain medications administered to when (if at all) to start life support in critical situations.   This document also allows you to appoint the person best suited to carry out such wishes should incapacity occur.

“Accidents and serious illness happen every day without warning,” says Worrall.  “That’s why it’s so important for any adult who has not tackled their estate planning to add it to their resolutions this year.  It will save their family from years of headaches and thousands of dollars in unexpected costs should the unthinkable happen”.

About Steve Worrall

Stephen M. Worrall is an experienced family law and wills, trusts and estate planning attorney in Marietta and Atlanta, Georgia. He concentrates his practice in all areas of family estate planning, including including wills, trusts, guardians for minor children and incapacitated adults, probate and trust administration, and all areas of family law, including divorce, adoption and prenuptial agreements. He also helps families plan to protect their assets and their children in the event of their death or incapacity, and to transfer their whole wealth – their financial, intellectual, and spiritual assets – to their loved ones.

A gift to help with your New Year’s resolution

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If one of your New Year’s resolutions this year includes getting your financial and legal affairs in order should something unexpectedly happen to you, I have a gift I think you’ll enjoy.

To be specific, I just put the finishing touches on a free report I wrote entitled, “What You Don’t Know CAN Hurt Your Family: 5 Easy Ways to Make Sure Your Children, Wishes and Assets Stay Protected Should Something Happen to You”.

In this report you’ll learn 5 easy ways to get your legal and financial affairs in order, just in time for the New Year.  You won’t even need the help of an attorney for some of these important steps; simply follow my instructions in the guide and cross each item off of your “to-do” list as you go.

You’ll also discover:

  • How to legally name guardians for your minor children in a way that will hold up in a court of law
  • The difference between a will and a trust, and which tool you really need to make sure your family, wishes and assets stay protected upon your passing.
  • The details about simple document you can use to give someone legal permission to act on your behalf if you were incapacitated in an accident but did not die (…and without this document, no one will be able to help you under the current HIPPA laws!)
  • How to amass your “entire family wealth” and leave a true legacy to your children (hint: you don’t have to be wealthy and it’s easier than you think!)
  • And so much more!

To grab a copy of this report, simply visit http://bit.ly/gNUxIJ.

I’d also like to encourage you to forward this to any of your family or friends who really need to get their affairs in order just in time for the New Year.  I would especially encourage you to reach out to anyone who has minor children, owns their own home, cares for aging parents or is approaching retirement age themselves.

Again, you can get a copy of this free report now by going to http://bit.ly/dGpJM1. 

All my best,

Steve

More Information on Georgia Advance Directives for Health Care

The State Bar of Georgia has consumer pamphlets available on a number of topics. One of them is on  Advance Directives for Health Care:

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Foreword
You have the right to control all aspects of your personal care and medical treatment, including the right to insist upon medical treatment or direct that medical treatment be withheld or withdrawn. If you cannot (or do not want to) communicate your health care decisions for yourself, you have the right to choose someone to make health care decisions for you. You also have the right to state your treatment preferences if you have a terminal condition or are in a state of permanent unconsciousness.

The Georgia Advance Directive for Health Care Act gives you an opportunity to choose someone to make health care decisions on your behalf and to make a clear expression of your decisions regarding health care if you are in a terminal condition or state of permanent unconsciousness by executing an advance directive for health care.

What is an advance directive for health care?
An advance directive for health care (ADHC) is a legal document in which you (1) appoint your health care agent, and/or (2) direct the withholding or withdrawal of life-sustaining procedures and/or the provision of nourishment or hydration if you are in a terminal condition or a state of permanent unconsciousness. (Since 2007, the ADHC has replaced the legal documents called durable power of attorney for health care and living will in Georgia.)

Is any particular form of ADHC required?
You may use any form of ADHC that complies with Georgia law. However, the law provides a standard form of ADHC that will be treated as complying with Georgia law if it is properly executed. An attorney can provide you a form of ADHC and help you understand it, complete it and properly execute it. An ADHC must be in writing, signed by you, and attested and signed by two adult witnesses. You may revoke or amend your ADHC at any time.

Who may execute an ADHC?
Any adult who is of sound mind may execute an ADHC.

What is a health care agent?
A health care agent is a person appointed by you in an ADHC to act on your behalf to make decisions related to the consent to, refusal of or withdrawal of any type of health care. A health care agent may also be given the authority to make decisions related to autopsy, anatomical gifts and the final disposition of your body after your death. A physician or health care provider who is directly involved in your care may not be your health care agent.

What is meant by health care?
Health care means any care, treatment, service or procedure to maintain, diagnose, treat or provide for your physical or mental health or personal care.

What powers does my health care agent have?
Your health care agent will make health care decisions for you only when you are unable to communicate your health care decisions or you choose to have your health care agent communicate your health care decisions. Your health care agent will have the same authority to make any health care decision that you could make. The health care agent's authority includes the power to admit you to or discharge you from any hospital, skilled nursing facility, hospice or other health care facility or service; the power to request, consent to, withhold or withdraw any kind of health care; and the power to contract for any health care facility or service for you and to obligate you to make arrangements for these services. Your health care agent may accompany you in an ambulance and may visit or consult with you in person while you are in a hospital, skilled nursing facility, hospice or other health care facility. If you choose, your health care agent will also have the power to authorize an autopsy of your body after your death, make a disposition of all or any part of your body for medical purposes and make decisions about the final disposition of your body.

Does my health care agent have access to medical records?
Your health care agent will be your personal representative for all purposes of federal or state laws relating to privacy of medical records and will have the same access to your medical records that you have and can disclose the contents of your medical records to others for your ongoing health care.

How does my health care agent make decisions?
When making health care decisions for you, your health care agent should think about what action would be consistent with past conversations the two of you have had, your treatment preferences as expressed in your ADHC, your religious and other beliefs and values and how you have handled medical and other important issues in the past. If what you would decide is still unclear, then your health care agent should make decisions for you that your agent believes are in your best interest, considering the benefits, burdens and risks of your current circumstances and treatment options.

Am I required to appoint a health care agent in my ADHC?
You are not required to appoint a health care agent in an ADHC. If you wish, you may use an ADHC only to express your treatment preferences if you have a terminal condition or are in a state of permanent unconsciousness.

How do I express my treatment preferences for a terminal condition or state of permanent unconsciousness in my ADHC?
In an ADHC you may express your treatment preferences for either or both of two conditions: if you are in a terminal condition or if you are in a state of permanent unconsciousness. Your condition will be determined in writing by your attending physician and a second physician in accordance with currently accepted medical standards. Your treatment preferences in your ADHC will be followed only if you can no longer communicate your treatment preferences after appropriate efforts have been made to communicate with you about your treatment preferences. Treatment preferences are your decisions as to the withholding or withdrawal of life-sustaining procedures and/or the provision of nourishment and hydration (nutrition and fluids).

What is a terminal condition?
A terminal condition is an incurable or irreversible condition which would result in your death in a relatively short period of time.

What is a state of permanent unconsciousness?
A state of permanent unconsciousness is an incurable or irreversible condition in which you are not aware of yourself or your environment and in which you show no behavioral response to your environment.

What are life-sustaining procedures?
Life-sustaining procedures are medications, machines or other medical procedures which, when applied to you in a terminal condition or state of permanent unconsciousness, could in reasonable medical judgment keep you alive but cannot cure you and where, in the judgment of the attending physician and a second physician, your death will occur without such procedures or interventions. Life-sustaining procedures do not include administration of medication to alleviate pain or the performance of any medical procedures deemed necessary to alleviate pain. Life-sustaining procedures also do not include the provision of nourishment or hydration (nutrition and fluids), but you may direct the withholding or withdrawal of nourishment or hydration in an ADHC.

What are my options for treatment preferences for a terminal condition or state of permanent unconsciousness?
The form of ADHC provided by the law allows you to express any one of three preferences for treatment if you are in a terminal condition or state of permanent unconsciousness: (1) Try to extend your life as much as possible, using all life-sustaining procedures, and if you are unable to receive nourishment or hydration (nutrition and fluids) by mouth, then you want to receive artificial nourishment or hydration (by tube or other medical means); (2) Allow your natural death to occur; you do not want any life-sustaining procedures or artificial nourishment or hydration; (3) You do not want any life-sustaining procedures
except as you specifically indicate in the form, and you can choose to receive artificial nourishment and/or hydration, a ventilator and/or CPR. No matter which of the three options you choose, you may also provide additional treatment preferences on the form.

Can my health care agent make decisions regarding my treatment in a terminal condition or state of permanent unconsciousness?
Unless you provide otherwise in your ADHC, the treatment preferences expressed in your ADHC are ineffective so long as you have a health care agent who is available and willing to make decisions on your behalf regarding the withholding or withdrawal of life-sustaining procedures and/or the provision of nourishment or hydration. However, your health care agent is required to take any treatment preferences expressed in your ADHC into account when making decisions about your health care.

Am I required to express my treatment preferences for a terminal condition or state of permanent unconsciousness in my ADHC?
You are not required to express treatment preferences for a terminal condition or state of permanent unconsciousness in an ADHC. If you wish, you may use an ADHC only to appoint a health care agent.

Is my health care provider required to honor my ADHC?
If your health care provider receives your ADHC, your health care provider has the responsibility to enter the ADHC in your medical records, to grant your health care agent adequate access to you, to consult with your health care agent, to comply with the decisions of your health care agent and to give your health care agent the same right to examine and copy your medical records that you would have. A health care provider who fails or refuses to comply with your treatment preferences regarding the withholding or withdrawal of life-sustaining procedures and/or the provision of nourishment or hydration must advise your health care agent (if you have one) or your next of kin or guardian and, if directed to do so, must allow you to be transferred to another physician who will comply with your treatment preferences.

What effect does my marriage or divorce have on my ADHC?
Unless you provide otherwise in your ADHC, if you get married after executing an ADHC, the marriage revokes the designation of anyone other than your spouse as your health care agent. And unless you provide otherwise in your ADHC, if you get divorced after executing an ADHC, the divorce revokes the designation of your former spouse as your health care agent.

What is the difference between an ADHC and a durable power of attorney for health care?
Georgia law used to provide for the appointment of a health care agent in a document called a durable power of attorney for health care. Since 2007, the ADHC has replaced the durable power of attorney for health care in Georgia. Your durable power of attorney for health care executed under the old law remains effective, but it would be a good idea for you to replace it with an ADHC.

What is the difference between an ADHC and a living will?
Georgia law used to provide for the declaration of treatment preferences for a terminal condition and state of permanent unconsciousness in a document called a living will. Since 2007, the ADHC has replaced the living will in Georgia. Your living will executed under the old law remains effective, but it would be a good idea for you to replace it with an ADHC.

What is a guardian?
A court will appoint a guardian for you if the court finds that you are not able to make significant responsible decisions for yourself regarding your personal support, safety or welfare. A court will appoint the person nominated by you if the court finds that the appointment will serve your best interest and welfare. In an ADHC, you may nominate a person to serve as your guardian in the event a court decides that a guardian should be appointed. You may (but are not required to) nominate your health care agent to be your guardian. A guardian does not have the power to manage your property or financial affairs.

This pamphlet was prepared by the Fiduciary Law Section of the State Bar of Georgia as a public service. It is not intended to be a comprehensive statement of law. Its purpose is to inform, not to advise on any specific legal problem. If you have specific questions regarding any matter contained in this pamphlet, you are encouraged to consult an attorney.

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SOURCE: State Bar of Georgia