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Wills & Estate Planning

1. How Long is a Will Valid?

The mere passage of time has no effect on the validity of the will. Since a will does not take affect until you pass away, you may make changes to your will at any time without notice or approval from the beneficiaries, but the changes must be executed with the same formalities as the will itself. You should review your will every two to three years, and at major life changes, such as marriage, divorce, the birth or adoption of a child or a substantial increase in assets.

2. Who Should Prepare a Will?

Did you know that not all assets are required to be probated. Drafting a will involves making decisions requiring professional judgment which can be obtained only by years of training, experience and study. Only a practicing lawyer can avoid the innumerable pitfalls and advise the course best suited for each situation to ensure that your wishes are respected. You should avoid using do-it-yourself kits or Internet templates, as they may create many problems.

3. What is a Living Will?

In the event of a life threatening situation, whereby your sole means of survival depends on a life support machine, the Living Will grants a specific individual (to named by you) the authority to decide whether to sustain your life with aid of the life support equipment or to disconnect the machine.

4. What is the difference between a Durable Power of Attorney and a Durable Power of Attorney for Health Care?

A Durable Power of Attorney grants a specific individual (to be named by you) the authority to handle your affairs when you are medically unable to do so.

Durable Power of Attorney for Health Care grants a specific individual (to be named by you) the authority to make healthcare and/or medical treatment decisions, when you are medically unable to do so.

5. What is the Relationship between a Health Care Power of Attorney and Living Will?

Generally, if you have a health care power of attorney, your living will does not apply as long as your agent is available to deal with the subject of life-sustaining or death-delaying procedures on your behalf. If your agent is not available, then your living will can specify your decision regarding the procedures.

6. Does HIPAA Apply to my Agent?

The federal Health Insurance Portability and Accountability Act (HIPAA) strictly limits access to your private medical records. This Act protects your private medical records and history from disclosure to third parties except upon your request or as necessary to treat you. A well-drafted health care power of attorney will allow your agent access to your private medical records so that he or she will have the information necessary to make an informed decision.

7. What is a Do Not Resuscitate (DNR) Order?

Living wills and health care powers of attorney are separate from a DNR order. A DNR Order tells medical professionals not to perform CPR. This means that doctors, nurses and emergency medical personnel will not attempt emergency CPR if the patient's breathing or heartbeat stops.

DNR orders may be written for patients in a hospital or nursing home, or for patients at home. Hospital DNR orders tell the medical staff not to revive the patient if cardiac arrest occurs. If the patient is in a nursing home or at home, a DNR order tells the staff and emergency medical personnel not to perform emergency resuscitation and not to transfer the patient to a hospital for CPR. A DNR order is only a decision about CPR and does not relate to any other treatment.

8. What are the Requirements for a Valid Health Care Power of Attorney or Living Will?
• The health care power of attorney and living will must be in writing and signed in the presence of two or more witnesses who are at least 18 years of age and who also must sign. There are additional signing requirements if you are in a hospital or skilled nursing facility.
• No health care provider may act as your agent if he or she is directly involved in your health care. "Health care provider" means an attending doctor or other person who is licensed to provide health care. It does not mean a family member who is caring for you.
• The health care power of attorney and living will do not need to be notarized to be valid.


9. What are the Duties of my Agent?

Your agent is not allowed to make health care decisions that are different from or contrary to your wishes. However, because the agent will speak on your behalf if you are unable to speak for yourself, it is very important that you choose an agent who knows what your decisions would be in certain situations.

The health care power of attorney can give your agent the power to consent or refuse all types of medical care and treatments. These include decisions on medication, surgery, or life-sustaining or death-delaying treatment. You may also authorize your agent to examine and consent to disclosure of your medical records and provide for choices for your health care based on your religious beliefs.

Your agent can decide whether to admit you to or discharge you from a hospital or nursing home and can authorize contracts for all types of health care services.

You may give your agent the power to make post-death decisions including the right to authorize an autopsy or consent to anatomical gifts. You may also specify your wishes regarding burial or cremation.

10. What are the Duties of Health Care Providers such as Doctors and Hospitals?

Once given a copy of your health care directive, if the health care provider believes that you are unable to understand the general nature of the health care procedure that the provider deems necessary, then the provider should consult with the agent named in your power of attorney or follow the treatment wishes you expressed in your living will. The provider must comply with the treatment decision made by your agent or as otherwise expressed in your health care directive to the same extent as if made by you at the time of the treatment decision.

11. Why Do I Need a Lawyer to Create these Documents?

Georgia law provides standard forms for living wills and health care powers of attorney and you do not have to have a lawyer prepare them for you. Many hospitals and health care providers have educational materials and standard forms available. However, many of the provisions are technical and can be somewhat confusing. A lawyer can assist you with an explanation of the terms and requirements of the documents to ensure your wishes are reflected.