Ten commonly asked questions about PAD's for Georgia

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s Statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice.  The answers were accurate when written in December 2006.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?  

Yes, by appointing an agent.  Georgia’s Durable Power of Attorney for Health Care Act allows you to appoint an agent to make health care decisions for you if you become incompetent to make those decisions yourself, with certain exceptions (see question 4 below).  Health care decisions may include decisions about mental health.  Although not mandatory, it is highly recommended that you use Georgia’s statutory short form Durable Power of Attorney to appoint your agent.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

The Georgia statutes do not allow you to write advance instructions for your psychiatric care in a freestanding document.  However, if you appoint an agent, you may wish to specify how you would like that person to make decisions for you.  If there are particular matters that you wish your agent to make clear to your treating physicians, it is advisable to discuss them with your agent and document them clearly in part 2 of the statutory short form Durable Power of Attorney .      

3.  Does anyone have to approve my advance instructions at the time I make them?  

No.  However, your form must be signed by two adult witnesses, who must declare that you were of “sound mind” and not under duress when you created the document.  If you are a “patient in a hospital or skilled nursing facility” at the time you create the document, it must also be signed by your attending physician.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?

Yes, as outlined above.  Note that your agent may not consent to psychosurgery or sterilization on your behalf.  Furthermore, your agent may not consent to involuntary hospitalization otherwise covered by Georgia’s involuntary treatment laws.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.  The general rule is that your agent may consent or refuse any medical treatments or procedures on your behalf when you are incompetent to make decisions yourself.  However, you may choose limit your agent’s authority in part 2 of the statutory short form Durable Power of Attorney as indicated there: for example, you may wish to decline electroconvulsive therapy (ECT) in all circumstances.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?   

The statute says that the agent must not make a decision contrary to any decision you made when you remained competent.  This amounts to a substituted judgment standard.  It is important to make your wishes known to your agent when you create your PAD.    

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

Yes.  As explained above, it is not possible to write advance instructions only.  If you wish to create a PAD, you must appoint an agent, but the extent to which you also document your decisions is up to you.  

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision? 

No.  The statute states that the provider’s obligation to consult the agent begins “whenever…[he/she] believes a patient is unable to understand the general nature of the health care procedure which the provider deems necessary”.    

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?  

No.  However, it is important to note that mental health care providers might legally decline your agent’s instructions if you were considered a danger to yourself or others, or otherwise in an emergency.   

10.  How long does my PAD remain valid?

Your Power of Attorney is valid until revoked.  You may revoke it at any time, orally or in writing.  If you appoint your spouse as your agent and subsequently become divorced, you must amend your document to make it clear who should serve as your agent.