07 LC 29
2674S
House
Bill 24 (COMMITTEE SUBSTITUTE)
By:
Representatives Tumlin of the
38th,
Keown of the
173rd,
Freeman of the
140th,
Oliver of the
83rd,
and Dempsey of the
13th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 31 of the Official Code of Georgia Annotated, relating to health, so
as to provide for an advance directive for health care which combines provisions
of a living will and a durable power of attorney for health care; to provide for
legislative findings; to provide for a short title; to provide for definitions;
to provide for a savings clause for a living will and a durable power of
attorney for health care; to provide for a form; to provide for execution, use
of a form or other forms, amendment, and witness requirements; to provide for
revocation, the effect of marriage, and guardianship; to provide for duties and
responsibilities of health care agents and health care providers; to provide for
conditions precedent to carrying out health care treatment preferences and a
physician´s responsibilities; to provide for immunity; to provide for the
effect of an advance directive for health care on criminal and insurance laws;
to provide for penalties; to provide for the effect of Chapter 32 of Title 31 on
other legal rights and duties; to repeal and reserve Chapter 36 of Title 31,
relating to a durable power of attorney for health care; to correct
cross-references; to provide for related matters; to provide for an effective
date; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
(a)
The General Assembly has long recognized the right of the individual to control
all aspects of his or her personal care and medical treatment, including the
right to insist upon medical treatment, decline medical treatment, or direct
that medical treatment be withdrawn. In order to secure these rights, the
General Assembly has adopted and amended statutes recognizing the living will
and health care agency and provided statutory forms for both
documents.
(b) The General Assembly has determined that the statutory forms for the living will and durable power of attorney for health care are confusing and inconsistent and that the statutes providing for the living will and health care agency contain conflicting concepts, inconsistent and out-of-date terminology, and confusing and inconsistent requirements for execution. In addition, there is a commendable trend among the states to combine the concepts of the living will and health care agency into a single legal document.
(c) The General Assembly recognizes that a significant number of individuals representing the academic, medical, legislative, and legal communities, state officials, ethics scholars, and advocacy groups worked together to develop the advance directive for health care contained in this Act, and the collective intent was to create a form that uses understandable and everyday language in order to encourage more citizens of this state to execute advance directives for health care.
(d) The General Assembly finds that the clear expression of an individual´s decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families. In furtherance of these purposes, the General Assembly enacts a new Chapter 32 of Title 31, setting forth general principles governing the expression of decisions regarding health care and the appointment of a health care agent, as well as a form of advance directive for health care.
(b) The General Assembly has determined that the statutory forms for the living will and durable power of attorney for health care are confusing and inconsistent and that the statutes providing for the living will and health care agency contain conflicting concepts, inconsistent and out-of-date terminology, and confusing and inconsistent requirements for execution. In addition, there is a commendable trend among the states to combine the concepts of the living will and health care agency into a single legal document.
(c) The General Assembly recognizes that a significant number of individuals representing the academic, medical, legislative, and legal communities, state officials, ethics scholars, and advocacy groups worked together to develop the advance directive for health care contained in this Act, and the collective intent was to create a form that uses understandable and everyday language in order to encourage more citizens of this state to execute advance directives for health care.
(d) The General Assembly finds that the clear expression of an individual´s decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families. In furtherance of these purposes, the General Assembly enacts a new Chapter 32 of Title 31, setting forth general principles governing the expression of decisions regarding health care and the appointment of a health care agent, as well as a form of advance directive for health care.
SECTION
2.
Title
31 of the Official Code of Georgia Annotated, relating to health, is amended by
revising Chapter 32, relating to living wills, in its entirety as
follows:
"CHAPTER
32
31-32-1.
This
chapter shall be known and may be cited as the 'Georgia Advance Directive for
Health Care Act.'
31-32-2.
As
used in this chapter, the term:
(1)
'Advance directive for health care' means a written document voluntarily
executed by a declarant in accordance with the requirements of Code Section
31-32-5.
(2)
'Attending physician' means the physician who has primary responsibility at the
time of reference for the treatment and care of the declarant.
(3)
'Declarant' means a person who has executed an advance directive for health care
authorized by this chapter.
(4)
'Durable power of attorney for health care' means a written document voluntarily
executed by an individual creating a health care agency in accordance with
Chapter 36 of this title, as such chapter existed on and before June 30,
2007.
(5)
'Health care' means any care, treatment, service, or procedure to maintain,
diagnose, treat, or provide for a declarant´s physical or mental health or
personal care.
(6)
'Health care agent' means a person appointed by a declarant to act for and on
behalf of the declarant to make decisions related to consent, refusal, or
withdrawal of any type of health care and decisions related to autopsy,
anatomical gifts, and final disposition of a declarant´s body when a
declarant is unable or chooses not to make health care decisions for himself or
herself. The term 'health care agent' shall include any back-up or successor
agent appointed by the declarant.
(7)
'Health care facility' means a hospital, skilled nursing facility, hospice,
institution, home, residential or nursing facility, treatment facility, and any
other facility or service which has a valid permit or provisional permit issued
under Chapter 7 of this title or which is licensed, accredited, or approved
under the laws of any state, and includes hospitals operated by the United
States government or by any state or subdivision thereof.
(8)
'Health care provider' means the attending physician and any other person
administering health care to the declarant at the time of reference who is
licensed, certified, or otherwise authorized or permitted by law to administer
health care in the ordinary course of business or the practice of a profession,
including any person employed by or acting for any such authorized
person.
(9)
'Life-sustaining procedures' means medications, machines, or other medical
procedures or interventions which, when applied to a declarant in a terminal
condition or in a state of permanent unconsciousness, could in reasonable
medical judgment keep the declarant alive but cannot cure the declarant and
where, in the judgment of the attending physician and a second physician, death
will occur without such procedures or interventions. The term 'life-sustaining
procedures' shall not include the provision of nourishment or hydration but a
declarant may direct the withholding or withdrawal of the provision of
nourishment or hydration in an advance directive for health care. The term
'life-sustaining procedures' shall not include the administration of medication
to alleviate pain or the performance of any medical procedure deemed necessary
to alleviate pain.
(10)
'Living will' means a written document voluntarily executed by an individual
directing the withholding or withdrawal of life-sustaining procedures when an
individual is in a terminal condition, coma, or persistent vegetative state in
accordance with this chapter, as such chapter existed on and before June 30,
2007.
(11)
'Physician' means a person lawfully licensed in this state to practice medicine
and surgery pursuant to Article 2 of Chapter 34 of Title 43; and if the
declarant is receiving health care in another state, a person lawfully licensed
in such state.
(12)
'Provision of nourishment or hydration' means the provision of nutrition or
fluids by tube or other medical means.
(13)
'State of permanent unconsciousness' means an incurable or irreversible
condition in which the declarant is not aware of himself or herself or his or
her environment and in which the declarant is showing no behavioral response to
his or her environment.
(14)
'Terminal condition' means an incurable or irreversible condition which would
result in the declarant´s death in a relatively short period of
time.
31-32-3.
The
provisions of this chapter shall not apply to, affect, or invalidate a living
will or durable power of attorney for health care executed prior to July 1,
2007, to which the provisions of former Chapter 32 or Chapter 36 of this title
shall continue to apply, nor shall it affect any claim, right, or remedy that
accrued prior to July 1, 2007.
31-32-4.
'GEORGIA
ADVANCE DIRECTIVE FOR HEALTH CARE
By:
_______________________________________ Date of Birth:
________________
(Print
Name) (Month/Day/Year)
This
advance directive for health care has four parts:
|
PART
ONE
|
HEALTH
CARE AGENT. This part
allows you to choose someone to make health care decisions for you when you
cannot (or do not want to) make health care decisions for yourself. The person
you choose is called a health care agent. You may also have your health care
agent make decisions for you after your death with respect to an autopsy, organ
donation, body donation, and final disposition of your body. You should talk to
your health care agent about this important role.
|
|
PART
TWO
|
TREATMENT
PREFERENCES. This
part allows you to state your treatment preferences if you have a terminal
condition or if you are in a state of permanent unconsciousness. PART TWO will
become effective only if you are unable to communicate your treatment
preferences. Reasonable and appropriate efforts will be made to communicate with
you about your treatment preferences before PART TWO becomes effective. You
should talk to your family and others close to you about your treatment
preferences.
|
|
PART
THREE
|
GUARDIANSHIP.
This part allows you
to nominate a person to be your guardian should one ever be needed.
|
|
PART
FOUR
|
EFFECTIVENESS
AND SIGNATURES. This
part requires your signature and the signatures of two witnesses. You must
complete PART FOUR if you have filled out
any other part of this
form.
|
You
may fill out any or all of the first three parts listed above. You must fill
out PART FOUR of this form in order for this form to be effective.
You
should give a copy of this completed form to people who might need it, such as
your health care agent, your family, and your physician. Keep a copy of this
completed form at home in a place where it can easily be found if it is needed.
Review this completed form periodically to make sure it still reflects your
preferences. If your preferences change, complete a new advance directive for
health care.
Using
this form of advance directive for health care is completely optional. Other
forms of advance directives for health care or health care proxies may be used
in Georgia.
You
may revoke this completed form at any time. This completed form will replace
any advance directive for health care, durable power of attorney for health
care, health care proxy, or living will that you have completed before
completing this form.
PART ONE: HEALTH CARE AGENT
PART ONE: HEALTH CARE AGENT
[PART
ONE will be effective even if PART TWO is not completed. A physician or health
care provider who is directly involved in your health care may not serve as your
health care agent. If you are married, a future divorce or annulment of your
marriage will revoke the selection of your current spouse as your health care
agent. If you are not married, a future marriage will revoke the selection of
your health care agent unless the person you selected as your health care agent
is your new spouse.]
(1)
HEALTH CARE AGENT
I
select the following person as my health care agent to make health care
decisions for me:
Name:
________________________________________________________________
Address:
________________________________________________________________
Telephone
Numbers: ______________________________________________________
(Home,
Work, and Mobile)
(2)
BACK-UP
HEALTH CARE
AGENT
[This section is optional. PART ONE will be effective even if this section is left blank.]
[This section is optional. PART ONE will be effective even if this section is left blank.]
If
my health care agent cannot be contacted in a reasonable time period and cannot
be located with reasonable efforts or for any reason my health care agent is
unavailable or unable or unwilling to act as my health care agent, then I select
the following, each to act successively in the order named, as my back-up health
care agent(s):
Name:
_______________________________________________________________
Address:
_______________________________________________________________
Telephone
Numbers: ______________________________________________________
(Home,
Work, and Mobile)
Name:
_______________________________________________________________
Address:
_______________________________________________________________
Telephone
Numbers: ______________________________________________________
(Home,
Work, and Mobile)
(3)
GENERAL
POWERS OF HEALTH CARE AGENT
My
health care agent will make health care decisions for me when I am unable to
communicate my health care decisions or I choose to have my health care agent
communicate my health care decisions.
My
health care agent will have the same authority to make any health care decision
that I could make. My health care agent´s authority includes, for example,
the power to:
- Admit me to or discharge me from any hospital, skilled nursing facility, hospice, or other health care facility or service;
- Request, consent to, withhold, or withdraw any type of health care; and
-
Contract for any health care facility or service for me, and to obligate me to
pay for these services (and my health care agent will not be financially liable
for any services or care contracted for me or on my behalf).
My
health care agent will be my personal representative for all purposes of federal
or state law related to privacy of medical records and will have the same access
to my medical records that I have and can disclose the contents of my medical
records to others for my ongoing health care.
My
health care agent may accompany me in an ambulance or air ambulance if in the
opinion of the ambulance personnel protocol permits a passenger and my health
care agent may visit or consult with me in person while I am in a hospital,
skilled nursing facility, hospice, or other health care facility or service if
its protocol permits visitation.
My
health care agent may present a copy of this advance directive for health care
in lieu of the original and the copy will have the same meaning and effect as
the original.
I
understand that under Georgia law:
- My health care agent may refuse to act as my health care agent;
- A court can take away the powers of my health care agent if it finds that my health care agent is not acting properly; and
-
My health care agent does not have the power to make health care decisions for
me regarding psychosurgery, sterilization, or treatment or involuntary
hospitalization for mental or emotional illness, mental retardation, or
addictive disease.
(4)
GUIDANCE
FOR HEALTH CARE AGENT
When
making health care decisions for me, my health care agent should think about
what action would be consistent with past conversations we have had, my
treatment preferences as expressed in PART TWO (if I have filled out PART TWO),
my religious and other beliefs and values, and how I have handled medical and
other important issues in the past. If what I would decide is still unclear,
then my health care agent should make decisions for me that my health care agent
believes are in my best interest, considering the benefits, burdens, and risks
of my current circumstances and treatment options.
(5)
POWERS
OF HEALTH CARE AGENT AFTER DEATH
(A)
AUTOPSY
My
health care agent will have the power to authorize an autopsy of my body unless
I have limited my health care agent´s power by initialing
below.
__________
(Initials) My health care agent will not have the power to authorize an autopsy
of my body (unless an autopsy is required by law).
(B)
ORGAN DONATION
AND DONATION OF BODY
My
health care agent will have the power to make a disposition of any part or all
of my body for medical purposes pursuant to the Georgia Anatomical Gift Act,
unless I have limited my health care agent´s power by initialing
below.
[Initial
each statement that you want to apply.]
__________
(Initials) My health care agent will not have the power to make a disposition
of my body for use in a medical study program.
__________
(Initials) My health care agent will not have the power to donate any of my
organs.
(C)
FINAL
DISPOSITION OF BODY
My
health care agent will have the power to make decisions about the final
disposition of my body unless I have initialed below.
__________
(Initials) I want the following person to make decisions about the final
disposition of my body:
Name:
_______________________________________________________________
Address:
_______________________________________________________________
Telephone
Numbers: ______________________________________________________
(Home,
Work, and Mobile)
I
wish for my body to be:
__________
(Initials) Buried
OR
__________
(Initials) Cremated
PART
TWO: TREATMENT PREFERENCES
[PART
TWO will be effective only if you are unable to communicate your treatment
preferences after reasonable and appropriate efforts have been made to
communicate with you about your treatment preferences. PART TWO will be
effective even if PART ONE is not completed. If you have not selected a health
care agent in PART ONE, or if your health care agent is not available, then PART
TWO will provide your physician and other health care providers with your
treatment preferences. If you have selected a health care agent in PART ONE,
then your health care agent will have the authority to make all health care
decisions for you regarding matters covered by PART TWO. Your health care agent
will be guided by your treatment preferences and other factors described in
Section (4) of PART ONE.]
(6)
CONDITIONS
PART
TWO will be effective if I am in any of the following conditions:
[Initial
each condition in which you want PART TWO to be effective.]
_________
(Initials) A terminal condition, which means I have an incurable or
irreversible condition that will result in my death in a relatively short period
of time.
_________
(Initials) A state of permanent unconsciousness, which means I am in an
incurable or irreversible condition in which I am not aware of myself or my
environment and I show no response to my environment.
My
condition will be determined in writing after personal examination by my
attending physician and a second physician in accordance with currently accepted
medical standards.
(7)
TREATMENT
PREFERENCES
[State your treatment preference by initialing (A), (B), or (C). If you choose (C), state your additional treatment preferences by initialing one or more of the statements following (C). You may provide additional instructions about your treatment preferences in the next section. You will be provided with comfort care, including pain relief, but you may also want to state your specific preferences regarding pain relief in the next section.]
[State your treatment preference by initialing (A), (B), or (C). If you choose (C), state your additional treatment preferences by initialing one or more of the statements following (C). You may provide additional instructions about your treatment preferences in the next section. You will be provided with comfort care, including pain relief, but you may also want to state your specific preferences regarding pain relief in the next section.]
If
I am in any condition that I initialed in Section (6) above and I can no longer
communicate my treatment preferences after reasonable and appropriate efforts
have been made to communicate with me about my treatment preferences,
then:
(A)
_________ (Initials) Try to extend my life for as long as possible, using
all medications, machines, or other medical procedures that in reasonable
medical judgment could keep me alive. If I am unable to take nutrition or
fluids by mouth, then I want to receive nutrition or fluids by tube or other
medical means.
OR
(B)
_________ (Initials) Allow my natural death to occur. I do not want any
medications, machines, or other medical procedures that in reasonable medical
judgment could keep me alive but cannot cure me. I do not want to receive
nutrition or fluids by tube or other medical means except as needed to provide
pain medication.
OR
(C)
_________ (Initials) I do not want any medications, machines, or other medical
procedures that in reasonable medical judgment could keep me alive but cannot
cure me, except as follows:
[Initial
each statement that you want to apply to option (C).]
_________
(Initials) If I am unable to take nutrition by mouth, I want to receive
nutrition by tube or other medical means.
_________
(Initials) If I am unable to take fluids by mouth, I want to receive fluids by
tube or other medical means.
_________
(Initials) If I need assistance to breathe, I want to have a ventilator
used.
_________
(Initials) If my heart or pulse has stopped, I want to have cardiopulmonary
resuscitation (CPR) used.
(8)
ADDITIONAL
STATEMENTS
[This section is optional. PART TWO will be effective even if this section is left blank. This section allows you to state additional treatment preferences, to provide additional guidance to your health care agent (if you have selected a health care agent in PART ONE), or to provide information about your personal and religious values about your medical treatment. For example, you may want to state your treatment preferences regarding medications to fight infection, surgery, amputation, blood transfusion, or kidney dialysis. Understanding that you cannot foresee everything that could happen to you after you can no longer communicate your treatment preferences, you may want to provide guidance to your health care agent (if you have selected a health care agent in PART ONE) about following your treatment preferences. You may want to state your specific preferences regarding pain relief.]
[This section is optional. PART TWO will be effective even if this section is left blank. This section allows you to state additional treatment preferences, to provide additional guidance to your health care agent (if you have selected a health care agent in PART ONE), or to provide information about your personal and religious values about your medical treatment. For example, you may want to state your treatment preferences regarding medications to fight infection, surgery, amputation, blood transfusion, or kidney dialysis. Understanding that you cannot foresee everything that could happen to you after you can no longer communicate your treatment preferences, you may want to provide guidance to your health care agent (if you have selected a health care agent in PART ONE) about following your treatment preferences. You may want to state your specific preferences regarding pain relief.]
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(9)
IN
CASE OF
PREGNANCY
[PART TWO will be effective even if this section is left blank.]
[PART TWO will be effective even if this section is left blank.]
I
understand that under Georgia law, PART TWO generally will have no force and
effect if I am pregnant unless the fetus is not viable and I indicate by
initialing below that I want PART TWO to be carried out.
_________
(Initials) I want PART TWO to be carried out if my fetus is not
viable.
PART
THREE: GUARDIANSHIP
(10)
GUARDIANSHIP
[PART THREE is optional. This advance directive for health care will be effective even if PART THREE is left blank.
If you wish to nominate a person to be your guardian in the event a court decides that a guardian should be appointed, complete PART THREE. A court will appoint the person nominated by 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. If you have selected a health care agent in PART ONE, you may (but are not required to) nominate the same person to be your guardian. If your health care agent and guardian are not the same person, your health care agent will have priority over your guardian in making your health care decisions, unless a court determines otherwise.]
[PART THREE is optional. This advance directive for health care will be effective even if PART THREE is left blank.
If you wish to nominate a person to be your guardian in the event a court decides that a guardian should be appointed, complete PART THREE. A court will appoint the person nominated by 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. If you have selected a health care agent in PART ONE, you may (but are not required to) nominate the same person to be your guardian. If your health care agent and guardian are not the same person, your health care agent will have priority over your guardian in making your health care decisions, unless a court determines otherwise.]
[State
your preference by initialing (A) or (B). Choose (A) only if you have also
completed PART ONE.]
(A)
__________ (Initials) I nominate the person serving as my health care agent
under PART ONE to serve as my guardian.
OR
(B)
__________ (Initials) I nominate the following person to serve as my
guardian:
Name:
______________________________________________________________
Address:
_____________________________________________________________
Telephone
Numbers: ___________________________________________________
(Home,
Work, and Mobile)
PART
FOUR: EFFECTIVENESS
AND
SIGNATURES
This
advance directive for health care will become effective only if I am unable or
choose not to make or communicate my own health care decisions.
This
form revokes any advance directive for health care, durable power of attorney
for health care, health care proxy, or living will that I have completed before
this date.
Unless
I have initialed below and have provided alternative future dates or events,
this advance directive for health care will become effective at the time I sign
it and will remain effective until my death (and after my death to the extent
authorized in Section (5) of PART ONE).
__________
(Initials) This advance directive for health care will become effective on or
upon ________________ and will terminate on or upon
________________.
[You
must sign and date or acknowledge signing and dating this form in the presence
of two
witnesses.
Both witnesses must be of sound mind and must be at least 18 years of age, but the witnesses do not have to be together or present with you when you sign this form.
A witness:
Both witnesses must be of sound mind and must be at least 18 years of age, but the witnesses do not have to be together or present with you when you sign this form.
A witness:
- Cannot be a person who was selected to be your health care agent or back-up health care agent in PART ONE;
- Cannot be a person who will knowingly inherit anything from you or otherwise knowingly gain a financial benefit from your death; or
- Cannot be a person who is directly involved in your health care.
Only
one of the witnesses may be an employee, agent, or medical staff member of the
hospital, skilled nursing facility, hospice, or other health care facility in
which you are receiving health care (but this witness cannot be directly
involved in your health care).]
By
signing below, I state that I am emotionally and mentally capable of making this
advance directive for health care and that I understand its purpose and
effect.
_________________________________________
________________
(Signature
of Declarant)
(Date)
The
declarant signed this form in my presence or acknowledged signing this form to
me. Based upon my personal observation, the declarant appeared to be emotionally
and mentally capable of making this advance directive for health care and signed
this form willingly and voluntarily.
______________________________________________
_______________
(Signature of First Witness)
(Date)
Print
Name:
______________________________________________________________
Address:
_______________________________________________________________
______________________________________________
________________
(Signature of Second Witness)
(Date)
Print
Name:
______________________________________________________________
Address:
________________________________________________________________
[This
form does not need to be
notarized.]'
31-32-5.
(a)
Any person of sound mind who is emancipated or 18 years of age or older may
execute a document which:
(1)
Directs the withholding or withdrawal of life-sustaining procedures or the
withholding or withdrawal of the provision of nourishment or hydration when the
declarant is in a terminal condition or state of permanent
unconsciousness;
(2)
Appoints a health care agent; or
(3)
Covers matters contained in both paragraphs (1) and (2) of this
subsection.
Such
document shall be in writing, signed by the declarant or by some other person in
the declarant´s presence and at the declarant´s express direction, and
witnessed in accordance with the provisions of subsection (c) of this Code
section.
(b)
When a document substantially complying with Code Section 31-32-4 is executed in
accordance with this Code section, it shall be treated as an advance directive
for health care which complies with this Code section. No provision of this
chapter shall be construed to bar a declarant from using any other form of
advance directive for health care which complies with this Code section. A
document covering any matter contained in paragraph (1), (2), or (3) of
subsection (a) of this Code section which was executed in another state and is
valid under the laws of the state where executed shall be treated as an advance
directive for health care which complies with this Code section.
(c)(1)
An advance directive for health care shall be attested and subscribed in the
presence of the declarant by two witnesses who are of sound mind and at least 18
years of age, but such witnesses do not have to be together or present when the
declarant signs the advance directive for health care.
(2)
Neither witness can be a person who:
(A)
Was selected to serve as the declarant´s health care agent;
(B)
Will knowingly inherit anything from the declarant or otherwise knowingly gain a
financial benefit from the declarant´s death; or
(C)
Is directly involved in the declarant´s health care.
(3)
Not more than one of the witnesses may be an employee, agent, or medical staff
member of the health care facility in which the declarant is receiving health
care.
(d)
A physician or health care provider who is directly involved in the
declarant´s health care may not serve as the declarant´s health care
agent.
(e)
A copy of an advance directive for health care executed in accordance with this
Code section shall be valid and have the same meaning and effect as the original
document.
(f)
An advance directive for health care may be amended at any time by a written
document signed by the declarant or by some other person in the declarant´s
presence and at the declarant´s express direction, and witnessed in
accordance with the provisions of subsection (c) of this Code
section.
31-32-6.
(a)
An advance directive for health care may be revoked at any time by the
declarant, without regard to the declarant´s mental state or competency, by
any of the following methods:
(1)
By completing a new advance directive for health care that has provisions which
are inconsistent with the provisions of a previously executed advance directive
for health care, living will, or durable power of attorney for health care;
provided, however, that such revocation shall extend only so far as the
inconsistency exists between the documents and any part of a prior document that
is not inconsistent with a subsequent document which shall remain
unrevoked;
(2)
By being obliterated, burned, torn, or otherwise destroyed by the declarant or
by some person in the declarant´s presence and at the declarant´s
direction indicating an intention to revoke;
(3)
By a written revocation clearly expressing the intent of the declarant to revoke
the advance directive for health care signed and dated by the declarant or by a
person acting at the declarant´s direction. If the declarant is receiving
health care in a health care facility, revocation of an advance directive for
health care will become effective only upon communication to the attending
physician by the declarant or by a person acting at the declarant´s
direction. The attending physician shall record in the declarant´s medical
record the time and date when the attending physician received notification of
the written revocation; or
(4)
By an oral or any other clear expression of the intent to revoke the advance
directive for health care in the presence of a witness 18 years of age or older
who, within 30 days of the expression of such intent, signs and dates a writing
confirming that such expression of intent was made. If the declarant is
receiving health care in a health care facility, revocation of an advance
directive for health care will become effective only upon communication to the
attending physician by the declarant or by a person acting at the
declarant´s direction. The attending physician shall record in the
declarant´s medical record the time, date, and place of the revocation and
the time, date, and place, if different, when the attending physician received
notification of the revocation. Any person, other than the health care agent, to
whom an oral or other nonwritten revocation of an advance directive for health
care is communicated or delivered shall make all reasonable efforts to inform
the health care agent of that fact as promptly as possible.
(b)
Unless an advance directive for health care expressly provides otherwise, if
after executing an advance directive for health care, the declarant marries,
such marriage shall revoke the designation of a person other than the
declarant´s spouse as the declarant´s health care agent, and if, after
executing an advance directive for health care, the declarant´s marriage is
dissolved or annulled, such dissolution or annulment shall revoke the
designation of the declarant´s former spouse as the declarant´s health
care agent.
(c)
An advance directive for health care which survives disability, incapacity, or
incompetency shall not be revoked solely by the appointment of a guardian or
receiver for the declarant. Absent an order of the probate court or superior
court having jurisdiction directing a guardian of the person to exercise the
powers of the declarant under an advance directive for health care which
survives disability, incapacity, or incompetency, the guardian of the person has
no power, duty, or liability with respect to any health care matters covered by
the advance directive for health care; provided, however, that no order usurping
the authority of a health care agent known to the proposed guardian shall be
entered unless notice is sent by first-class mail to the health care
agent´s last known address and it is shown by clear and convincing evidence
that the health care agent is acting in a manner inconsistent with the power of
attorney.
31-32-7.
(a)
A health care agent shall not have the authority to make a particular health
care decision different from or contrary to the declarant´s decision, if
any, if the declarant is able to understand the general nature of the health
care procedure being consented to or refused, as determined by the
declarant´s attending physician based on such physician´s good faith
judgment.
(b)
A health care agent shall be under no duty to exercise granted powers or to
assume control of or responsibility for the declarant´s health care;
provided, however, that when granted powers are exercised, the health care agent
shall use due care to act for the benefit of the declarant in accordance with
the terms of the advance directive for health care. A health care agent shall
exercise granted powers in such manner as the health care agent deems consistent
with the intentions and desires of the declarant. If a declarant´s
intentions and desires are unclear, the health care agent shall act in the
declarant´s best interest considering the benefits, burdens, and risks of
the declarant´s circumstances and treatment options.
(c)
A health care agent may act in person or through others reasonably employed by
the health care agent for that purpose but may not delegate authority to make
health care decisions.
(d)
A health care agent may sign and deliver all instruments, negotiate and enter
into all agreements, and do all other acts reasonably necessary to implement the
exercise of the powers granted to the health care agent. A health care agent
shall be authorized to accompany a declarant in an ambulance or air ambulance if
in the opinion of the ambulance personnel protocol permits a passenger and to
visit or consult in person with a declarant who is admitted to a health care
facility if the health care facility´s protocol permits such
visitation.
(e)
The form of advance directive for health care contained in Code Section 31-32-4
shall, and any different form of advance directive for health care may, include
the following powers, subject to any limitations appearing on the face of the
form:
(1)
The health care agent is authorized to consent to and authorize or refuse, or to
withhold or withdraw consent to, any and all types of medical care, treatment,
or procedures relating to the physical or mental health of the declarant,
including any medication program, surgical procedures, life-sustaining
procedures, or provision of nourishment or hydration for the declarant, but not
including psychosurgery, sterilization, or involuntary hospitalization or
treatment covered by Title 37;
(2)
The health care agent is authorized to admit the declarant to or discharge the
declarant from any health care facility;
(3)
The health care agent is authorized to contract for any health care facility or
service in the name of and on behalf of the declarant and to bind the declarant
to pay for all such services, and the health care agent shall not be personally
liable for any services or care contracted for or on behalf of the
declarant;
(4)
At the declarant´s expense and subject to reasonable rules of the health
care provider to prevent disruption of the declarant´s health care, the
health care agent shall have the same right the declarant has to examine and
copy and consent to disclosure of all the declarant´s medical records that
the health care agent deems relevant to the exercise of the agent´s powers,
whether the records relate to mental health or any other medical condition and
whether they are in the possession of or maintained by any physician,
psychiatrist, psychologist, therapist, health care facility, or other health
care provider, notwithstanding the provisions of any statute or other rule of
law to the contrary; and
(5)
Unless otherwise provided, the health care agent is authorized to direct that an
autopsy of the declarant´s body be made; to make an anatomical gift of any
part or all of the declarant´s body pursuant to Article 6 of Chapter 5 of
Title 44, the 'Georgia Anatomical Gift Act'; and to direct the final disposition
of the declarant´s body, including funeral arrangements, burial, or
cremation.
(f)
A court may remove a health care agent if it finds that the health care agent is
not acting properly.
31-32-8.
Each
health care provider and each other person with whom a health care agent
interacts under an advance directive for health care shall be subject to the
following duties and responsibilities:
(1)
It is the responsibility of the health care agent or declarant to notify the
health care provider of the existence of the advance directive for health care
and any amendment or revocation thereof. A health care provider furnished with
a copy of an advance directive for health care shall make such copy a part of
the declarant´s medical records and shall enter in the records any change
in or termination of the advance directive for health care by the declarant that
becomes known to the health care provider. A health care provider shall grant a
health care agent adequate access to a declarant when a declarant is admitted to
any health care facility. Whenever a health care provider believes a declarant
is unable to understand the general nature of the health care procedure which
the provider deems necessary, the health care provider shall consult with any
available health care agent known to the health care provider who then has power
to act for the declarant under an advance directive for health
care;
(2)
A health care decision made by a health care agent in accordance with the terms
of an advance directive for health care shall be complied with by every health
care provider to whom the decision is communicated, subject to the health care
provider´s right to administer treatment for the declarant´s comfort
or alleviation of pain; provided, however, that if the health care provider is
unwilling to comply with the health care agent´s decision, the health care
provider shall promptly inform the health care agent who shall then be
responsible for arranging for the declarant´s transfer to another health
care provider. A health care provider who is unwilling to comply with the
health care agent´s decision shall provide reasonably necessary
consultation and care in connection with the pending transfer;
(3)
At the declarant´s expense and subject to reasonable rules of the health
care provider to prevent disruption of the declarant´s health care, each
health care provider shall give a health care agent authorized to receive such
information under an advance directive for health care the same right the
declarant has to examine and copy any part or all of the declarant´s
medical records that the health care agent deems relevant to the exercise of
the health care agent´s powers, whether the records relate to mental health
or any other medical condition and whether they are in the possession of or
maintained by any physician, psychiatrist, psychologist, therapist, health care
facility, or other health care provider, notwithstanding the provisions of any
statute or rule of law to the contrary; and
(4)
If and to the extent an advance directive for health care empowers the health
care agent to direct that an autopsy of the declarant´s body be made; to
make an anatomical gift of any part or all of the declarant´s body pursuant
to Article 6 of Chapter 5 of Title 44, the 'Georgia Anatomical Gift Act'; or to
direct the final disposition of the declarant´s body, including funeral
arrangements, burial, or cremation, the decisions of the health care agent on
such matters shall be deemed the act of the declarant or of the person who has
priority under law to make the necessary decisions, and each person to whom a
direction by the health care agent in accordance with the terms of the agency
is communicated shall comply with such direction to the extent it is in accord
with reasonable medical standards or other relevant standards at the time of
reference.
31-32-9.
(a)
Prior to effecting a withholding or withdrawal of life-sustaining procedures or
the withholding or withdrawal of the provision of nourishment or hydration from
a declarant pursuant to an advance directive for health care, the attending
physician:
(1)
Shall determine that, to the best of that attending physician´s knowledge,
the declarant is not pregnant, or if she is, that the fetus is not viable and
that the declarant has specifically indicated in the advance directive for
health care that the declarant´s directions regarding the withholding or
withdrawal of life-sustaining procedures or the withholding or withdrawal of the
provision of nourishment or hydration specifically are to be carried
out;
(2)
Shall, without delay after the diagnosis of a terminal condition or state of
permanent unconsciousness of the declarant, take the necessary steps to provide
for the written certification of the declarant´s terminal condition or
state of permanent unconsciousness in accordance with the procedure set forth in
subsection (b) of this Code section;
(3)
Shall make a reasonable effort to determine that the advance directive for
health care complies with Code Section 31-32-5; and
(4)
Shall make the advance directive for health care and the written certification
of the terminal condition or state of permanent unconsciousness a part of the
declarant patient´s medical records.
(b)
The procedure for establishing a terminal condition or state of permanent
unconsciousness is as follows: two physicians, one of whom shall be the
attending physician, who, after personally examining the declarant, shall
certify in writing, based upon conditions found during the course of their
examination and in accordance with currently accepted medical standards, that
the declarant is in a terminal condition or state of permanent
unconsciousness.
(c)
The advance directive for health care shall be presumed, unless revoked, to be
the directions of the declarant regarding the withholding or withdrawal of
life-sustaining procedures or the withholding or withdrawal of the provision of
nourishment or hydration.
(d)
The attending physician who fails or refuses to comply with the declarant´s
directions regarding the withholding or withdrawal of life-sustaining procedures
or the withholding or withdrawal of the provision of nourishment or hydration
shall advise promptly the health care agent, if one is appointed, and,
otherwise, next of kin or legal guardian of the declarant that such physician is
unwilling to effectuate such directions. The attending physician shall
thereafter at the election of the health care agent, if one is appointed, and,
otherwise, next of kin or legal guardian of the declarant:
(1)
Make a good faith attempt to effect the transfer of the declarant to another
physician who will comply with the declarant´s directions regarding the
withholding or withdrawal of life-sustaining procedures or the withholding or
withdrawal of the provision of nourishment or hydration; or
(2)
Permit the health care agent, if one is appointed, and, otherwise, next of kin
or legal guardian of the declarant to obtain another physician who will comply
with the declarant´s directions regarding the withholding or withdrawal of
life-sustaining procedures or the withholding or withdrawal of the provision of
nourishment or hydration.
31-32-10.
(a)
Each health care provider, health care facility, and any other person who acts
in good faith reliance on any direction or decision by the health care agent
shall be protected and released to the same extent as though such person had
interacted directly with the declarant as a fully competent person. Without
limiting the generality of the foregoing, the following specific provisions
shall also govern, protect, and validate the acts of the health care agent and
each such health care provider, health care facility, and any other person
acting in good faith reliance on such direction or decision:
(1)
No such health care provider, health care facility, or person shall be subject
to civil or criminal liability or discipline for unprofessional conduct solely
for complying with any direction or decision by the health care agent, even if
death or injury to the declarant ensues;
(2)
No such health care provider, health care facility, or person shall be subject
to civil or criminal liability or discipline for unprofessional conduct solely
for failure to comply with any direction or decision by the health care agent,
as long as such health care provider, health care facility, or person promptly
informs the health care agent of such health care provider´s, health care
facility´s, or person´s refusal or failure to comply with such
direction or decision by the health care agent. The health care agent shall
then be responsible for arranging the declarant´s transfer to another
health care provider. A health care provider who is unwilling to comply with
the health care agent´s decision shall continue to provide reasonably
necessary consultation and care in connection with the pending
transfer;
(3)
If the actions of a health care provider, health care facility, or person who
fails to comply with any direction or decision by the health care agent are
substantially in accord with reasonable medical standards at the time of
reference and the provider cooperates in the transfer of the declarant pursuant
to paragraph (2) of Code Section 31-32-8, the health care provider, health care
facility, or person shall not be subject to civil or criminal liability or
discipline for unprofessional conduct for failure to comply with the advance
directive for health care;
(4)
No health care agent who, in good faith, acts with due care for the benefit of
the declarant and in accordance with the terms of an advance directive for
health care, or who fails to act, shall be subject to civil or criminal
liability for such action or inaction; and
(5)
If the authority granted by an advance directive for health care is revoked
under Code Section 31-32-6, a person shall not be subject to criminal
prosecution or civil liability for acting in good faith reliance upon such
advance directive for health care unless such person had actual knowledge of the
revocation.
(b)
No person shall be civilly liable for failing or refusing in good faith to
effectuate the declarant´s directions regarding the withholding or
withdrawal of life-sustaining procedures or the withholding or withdrawal of the
provision of nourishment or hydration.
(c)
No physician or any person acting under a physician´s direction and no
health care facility or any agent or employee thereof who, acting in good faith
in accordance with the requirements of this chapter, causes the withholding or
withdrawal of life-sustaining procedures or the withholding or withdrawal of the
provision of nourishment or hydration from a declarant or who otherwise
participates in good faith therein shall be subject to any civil or criminal
liability or guilty of unprofessional conduct therefor.
(d)
No person who witnesses an advance directive for health care in good faith and
in accordance with subsection (c) of Code Section 31-32-5 shall be civilly or
criminally liable or guilty of unprofessional conduct for such
action.
(e)
Any person who participates in the withholding or withdrawal of life-sustaining
procedures or the withholding or withdrawal of the provision of nourishment or
hydration pursuant to an advance directive for health care and who has actual
knowledge that such advance directive for health care has been properly revoked
shall not have any civil or criminal immunity otherwise granted under this
chapter for such conduct.
31-32-11.
(a)
The making of an advance directive for health care containing a declarant´s
directions regarding the withholding or withdrawal of life-sustaining procedures
or the withholding or withdrawal of the provision of nourishment or hydration,
shall not, for any purpose, constitute a suicide. If the declarant´s death
results from the withholding or withdrawal of life-sustaining procedures or the
withholding or withdrawal of the provision of nourishment or hydration in
accordance with the terms of an advance directive for health care, the death
shall not constitute a suicide or homicide for any purpose under any statute or
other rule of law.
(b)
The making of an advance directive for health care shall not restrict, inhibit,
or impair in any manner the sale, procurement, issuance, or enforceability of
any policy of life insurance, annuity, or other contract that is conditioned on
the life or death of the declarant nor shall it be deemed to modify the terms of
an existing policy of life insurance, annuity, or other contract that is
conditioned on the life or death of the declarant, notwithstanding any term of
the policy to the contrary. No policy of life insurance, annuity, or other
contract that is conditioned on the life or death of the declarant shall be
legally impaired or invalidated in any manner by the making of an advance
directive for health care pursuant to this chapter or by the withholding or
withdrawal of life-sustaining procedures or the withholding or withdrawal of the
provision of nourishment or hydration from an insured declarant, nor shall the
making of such an advance directive for health care or the withholding or
withdrawal of life-sustaining procedures or the withholding or withdrawal of the
provision of nourishment or hydration operate to deny any additional insurance
benefits for accidental death of the declarant in any case in which the terminal
condition of the declarant is the result of accident, notwithstanding any term
of the policy to the contrary.
31-32-12.
(a)
No physician, health care facility, or health care provider and no health care
service plan, insurer issuing disability insurance, self-insured employee
welfare benefit plan, or nonprofit hospital service plan shall require any
person to execute an advance directive for health care as a condition for being
insured for or receiving health care services.
(b)
No health care facility shall prepare or offer to prepare an advance directive
for health care unless specifically requested to do so by a person desiring to
execute an advance directive for health care. For purposes of this subsection,
the Department of Corrections shall not be deemed to be a health care
facility.
31-32-13.
All
persons shall be subject to the following sanctions in relation to advance
directives for health care, in addition to all other sanctions applicable under
any other law or rule of professional conduct:
(1)
Any person who, without the declarant´s consent, willfully conceals,
cancels, or alters an advance directive for health care or any amendment or
revocation of the advance directive for health care or who falsifies or forges
an advance directive for health care, amendment, or revocation shall be civilly
liable and guilty of a misdemeanor;
(2)
Any person who falsifies or forges an advance directive for health care of
another or who willfully conceals or withholds personal knowledge of an
amendment or revocation of an advance directive for health care with the intent
to cause a withholding or withdrawal of life-sustaining procedures or the
withholding or withdrawal of the provision of nourishment or hydration contrary
to the intent of the declarant and thereby, because of such act, directly causes
life-sustaining procedures or the provision of nourishment or hydration to be
withheld or withdrawn and death thereby to be hastened shall be subject to
prosecution for criminal homicide as provided in Chapter 5 of Title
16;
(3)
Any person who requires or prevents execution of an advance directive for health
care as a condition of ensuring or providing any type of health care services to
an individual shall be civilly liable and guilty of a misdemeanor; and
(4)
Any person who willfully witnesses an advance directive for health care knowing
at the time he or she is not eligible to witness such advance directive under
subsection (c) of Code Section 31-32-5 or who coerces or attempts to coerce a
person into making an advance directive for health care shall be civilly liable
and guilty of a misdemeanor.
31-32-14.
(a)
Nothing in this chapter shall impair or supersede any legal right or legal
responsibility which any person may have to effect the withholding or withdrawal
of life-sustaining procedures or the withholding or withdrawal of the provision
of nourishment or hydration in any lawful manner.
(b)
Nothing in this chapter shall be construed to condone, authorize, or approve
mercy killing or to permit any affirmative or deliberate act or omission to end
life other than to permit the process of dying as provided in this chapter.
Furthermore, nothing in this chapter shall be construed to condone, authorize,
or approve abortion.
(c)
This chapter shall create no presumption concerning the intention of an
individual who has not executed an advance directive for health care to consent
to the use or withholding or withdrawal of life-sustaining procedures or the
withholding or withdrawal of the provision of nourishment or hydration in the
event of a terminal condition or state of permanent
unconsciousness.
(d)
Except to the extent provided in an advance directive for health care and
subject to the health care agent´s duty to exercise granted powers in such
manner as the health care agent deems consistent with the intentions and desires
of the declarant pursuant to subsection (b) of Code Section 31-32-7, a
declarant´s direction regarding the withholding or withdrawal of
life-sustaining procedures or the withholding or withdrawal of the provision of
nourishment or hydration shall be ineffective as long as there is an available
health care agent to make decisions for and on behalf of the declarant regarding
the withholding or withdrawal of life-sustaining procedures or the withholding
or withdrawal of the provision of nourishment or hydration when the declarant is
in a terminal condition or state of permanent unconsciousness.
(e)
Unless an advance directive for health care provides otherwise, a health care
agent who is known to a health care provider to be available and willing to make
health care decisions for a declarant has priority over any other person,
including any guardian, to act for the declarant in all matters covered by the
advance directive for health care.
(f)
Nothing in this chapter shall affect the delegation of a parent´s power to
control the health care of a minor child."
SECTION
3.
Said
title is further amended by repealing Chapter 36, relating to durable power of
attorney for health care, and designating said chapter as reserved.
SECTION
4.
Code
Section 10-12-4 of the Official Code of Georgia Annotated, relating to the legal
effect of electronic signatures, is amended by revising paragraph (3) of
subsection (i) as follows:
"(3)
The provisions of this Code section shall not apply to any rule of law governing
the creation or execution of a will or testamentary or donative trust, living
will, advance
directive for health care, or health care
power of attorney, or to any record that serves as a unique and transferable
physical token of rights and obligations, including, without limitation,
negotiable instruments and instruments of title wherein possession of the
instrument is deemed to confer title."
SECTION
5.
Chapter
5 of Title 16 of the Official Code of Georgia Annotated, relating to crimes
against the person, is amended by revising subsection (d) of Code Section
16-5-5, relating to offering to assist in the commission of suicide, as
follows:
"(d)
The provisions of this Code section shall not be deemed to affect any of the
laws, in whole or in part, that may be applicable to the withholding or
withdrawal of medical or health care treatment,
including,
but not limited to, laws related to a living will, a durable power of attorney
for health care,
an advance
directive for health care, or a written
order not to resuscitate."
SECTION
6.
Said
chapter is further amended by revising subsection (b) of Code Section 16-5-100,
relating to cruelty to a person 65 years of age of older, as
follows:
"(b)
The provisions of this Code section shall not apply to a physician nor any
person acting under
his or
her
a
physician´s direction nor to a
hospital, skilled nursing facility, hospice, nor any agent or employee thereof
who is in good faith following a course of treatment developed in accordance
with accepted medical standards or who is acting in good faith in accordance
with a living will
as provided
in Chapter 32 of Title 31, a durable power
of attorney for health care
as provided
in Chapter 36 of Title 31,
an advance
directive for health care, an order not to
resuscitate
as provided
in Chapter 39 of Title 31, or the
instructions of the patient or the patient´s lawful surrogate decision
maker, nor shall the provisions of this Code section require any physician, any
institution licensed in accordance with Chapter 7 of Title 31 or any employee or
agent thereof to provide health care services or shelter to any person in the
absence of another legal obligation to do so."
SECTION
7.
Title
29 of the Official Code of Georgia Annotated, relating to guardian and ward, is
amended by revising subsection (c) of Code Section 29-4-3, relating to order of
preference in selection of guardians, as follows:
"(c)
At any time prior to the appointment of a guardian, an adult may nominate in
writing an individual to serve as that adult´s guardian should the adult be
judicially determined to be in need of a guardian, and that nomination shall be
given the preference described in this Code section, provided that it is signed
in accordance with the provisions of subsection (e) of this Code section or the
provisions of Code Section
31-36-5
31-32-5."
SECTION
8.
Said
title is further amended by revising paragraph (6) of subsection (b) of Code
Section 29-4-10, relating to petition for appointment of guardian, as
follows:
"(6)
Whether, to the petitioner´s knowledge, there exists any living will,
durable power of attorney for health care,
advance
directive for health care, order relating
to cardiopulmonary resuscitation, or other instrument that deals with the
management of the person of the proposed ward in the event of incapacity and the
name and address of any fiduciary or agent named in the
instrument;"
SECTION
9.
Said
title is further amended by revising subsection (b) of Code Section 29-4-21,
relating to rights and privileges removed from ward upon appointment of a
guardian, as follows:
"(b)
The mere appointment of a guardian does not revoke the powers of an agent who
was previously appointed by the ward to act as an agent under a durable power of
attorney for health care
or health care
agent under an advance directive for health
care."
SECTION
10.
Said
title is further amended by revising subsection (b) of Code Section 29-5-21,
relating to rights and powers removed from ward, as follows:
"(b)
The mere appointment of a conservator does not revoke the powers of an agent who
was previously appointed by the ward to act as the ward´s agent under a
durable power of attorney for health care
or health care
agent under an advance directive for health
care."
SECTION
11.
Title
31 of the Official Code of Georgia Annotated, relating to health, is amended by
revising subsection (b) of Code Section 31-8-55, relating to the state or
community ombudsman´s authority to enter and investigate certain
facilities, as follows:
"(b)
The state ombudsman or community ombudsman shall have the authority to enter any
long-term care facility and shall use his or her best efforts to enter such
facility during normal visiting hours. Upon entering the long-term care
facility, the ombudsman shall notify the administrator or, in the absence of the
administrator, the person in charge of the facility, before speaking to any
residents. After notifying the administrator or the person in charge of the
facility, the ombudsman may communicate privately and confidentially with
residents of the facility, individually or in groups. The ombudsman shall have
access to the medical and social records of any resident if:
(1)
The ombudsman has the permission of the resident or the legal representative or
guardian of the resident;
(2)
The resident is unable to consent to the review and has no legal representative
or guardian; or
(3)
There is a guardian of the person of the resident and that guardian refuses to
permit access to the records necessary to investigate a complaint,
and:
(A)
There is reasonable cause to believe that the guardian is not acting in the best
interests of the resident; and
(B)
A community ombudsman obtains the approval of the state ombudsman.
As
used in this Code section, the term 'legal representative' means an agent under
a valid power of attorney, provided that the agent is acting within the scope of
his or her agency; an agent under a durable power of attorney for health care
or health care
agent under an advance directive for health
care; or an executor, executrix,
administrator, or administratrix of the estate of a deceased resident. The
ombudsman shall have the authority to inspect the physical plant and have access
to the administrative records, policies, and documents of the facility to which
the residents have or the general public has access. Entry and investigation
provided by this Code section shall be conducted in a manner which will not
significantly disrupt the provision of nursing or other care to
residents."
SECTION
12.
Said
title is further amended by revising subsection (a) of Code Section 31-9-2,
relating to persons authorized to consent to surgical or medical treatment, as
follows:
"(a)
In addition to such other persons as may be authorized and empowered, any one of
the following persons is authorized and empowered to consent, either orally or
otherwise, to any surgical or medical treatment or procedures not prohibited by
law which may be suggested, recommended, prescribed, or directed by a duly
licensed physician:
(1)
Any adult, for himself
or
herself, whether by living
will, advance
directive for health care, or
otherwise;
(1.1)
Any person authorized to give such consent for the adult under
a health
care agency complying with
an advance
directive for health care or durable power of attorney for health care
under Chapter
36
32
of Title
31, the
'Durable Power of Attorney for Health Care
Act';
(2)
In the absence or unavailability of a living spouse, any parent, whether an
adult or a minor, for his
or
her minor child;
(3)
Any married person, whether an adult or a minor, for himself
or
herself and for his
or
her spouse;
(4)
Any person temporarily standing in loco parentis, whether formally serving or
not, for the minor under his
or
her care; and any guardian, for his
or
her ward;
(5)
Any female, regardless of age or marital status, for herself when given in
connection with pregnancy, or the prevention thereof, or childbirth;
or
(6)
Upon the inability of any adult to consent for himself
or
herself and in the absence of any person
to consent under paragraphs (2) through (5) of this subsection, the following
persons in the following order of priority:
(A)
Any adult child for his
or
her parents;
(B)
Any parent for his
or
her adult child;
(C)
Any adult for his
or
her brother or sister; or
(D)
Any grandparent for his
or
her grandchild."
SECTION
13.
Said
title is further amended by revising paragraph (2) of subsection (a) of Code
Section 31-33-2, relating to furnishing copy of health records to a patient,
provider, or other authorized person, as follows:
"(2)
Upon written request from the patient or a person authorized to have access to
the patient´s record under
a health
care power of attorney
an advance
directive for health care or a durable power of attorney for health
care for such patient, the provider having
custody and control of the patient´s record shall furnish a complete and
current copy of that record, in accordance with the provisions of this Code
section. If the patient is deceased, such request may be made by the following
persons:
(A)
The executor, administrator, or temporary administrator for the decedent´s
estate if such person has been appointed;
(B)
If an executor, administrator, or temporary administrator for the
decedent´s estate has not been appointed, by the surviving
spouse;
(C)
If there is no surviving spouse, by any surviving child; and
(D)
If there is no surviving child,
by
any parent."
SECTION
14.
Said
title is further amended by revising paragraph (2) of subsection (a) of Code
Section 31-36A-6, relating to persons authorized to consent, as
follows:
"(2)
Any person authorized to give such consent for the adult under
a health
care agency complying with Chapter 36 of this title, the 'Durable Power of
Attorney for Health Care Act'
an advance
directive for health care or durable power of attorney for health care under
Chapter 32 of this
title;"
SECTION
15.
Said
title is further amended by revising subparagraph (A) of paragraph (3) of Code
Section 31-39-2, relating to definitions for cardiopulmonary resuscitation, as
follows:
"(A)
Any agent
under a
durable power of attorney for health care or health care agent under an advance
directive for health care appointed
pursuant to
Chapter 36
of this title, the 'Durable Power of Attorney for Health Care
Act'
Chapter 32 of
this title;"
SECTION
16.
Code
Section 37-2-35 of the Official Code of Georgia Annotated, relating to
relationship to service recipients, is amended by revising subsection (b) as
follows:
"(b)
The state ombudsman or a community ombudsman shall have the authority to enter
any facility, premises, or property where disability services are provided and
shall use his or her best efforts to enter such facility, premises, or property
during normal business hours. Upon entering such facility, premises, or
property, the ombudsman shall notify the administrator or, in the absence of the
administrator, the person in charge of such facility, premises, or property
before speaking to any service recipient. After notifying the administrator or
the person in charge of such facility, premises, or property, the ombudsman may
communicate privately and confidentially with service recipients in such
facility, premises, or property individually or in groups. The ombudsman shall
have access to the medical, social, and disability records of any service
recipient if:
(1)
The ombudsman has the permission of the service recipient or the legal
representative or guardian of the service recipient;
(2)
The service recipient is unable to consent to the review and has no legal
representative or guardian; or
(3)
There is a guardian of the person of the service recipient and that guardian
refuses to permit access to the records necessary to investigate a complaint,
and:
(A)
There is reasonable cause to believe that the guardian is not acting in the best
interest of the service recipient; and
(B)
A community ombudsman obtains the approval of the state ombudsman.
As
used in this Code section, the term 'legal representative' means an agent under
a valid power of attorney, provided that the agent is acting within the scope of
his or her agency; an agent under a durable power of attorney for health care
or health care
agent under an advance directive for health
care; or an executor, executrix,
administrator, or administratrix of the estate of a deceased service recipient.
The ombudsman shall have the authority to inspect the physical plant and have
access to the administrative records, policies, and documents of the facility,
premises, or property to which the service recipients have or the general public
has access. Entry and investigation as provided by this Code section shall be
conducted in a manner which will not significantly disrupt the provision of
disability services to service recipients."
SECTION
17.
Code
Section 44-5-143 of the Official Code of Georgia Annotated, relating to adult
decedents, is amended by revising paragraph (1) of subsection (b) as follows:
"(1)
Any person having the power to permit an anatomical gift of all or part of the
body of the decedent if such power is granted pursuant to a
health care
agency created under Chapter 36 of Title 31, the 'Durable Power of Attorney for
Health Care Act'
durable power
of attorney for health care or advance directive for health care under Chapter
32 of Title 31;"
SECTION
18.
Code
Section 49-6-72 of the Official Code of Georgia Annotated, relating to
definitions for services for the aging, is amended by revising paragraph (9) as
follows:
"(9)
'Primary caregiver' means the one identified relative or other person in a
relationship of responsibility, such as an agent under a valid durable power of
attorney for health care
or health care
agent under a valid advance directive for health
care, who has assumed the primary
responsibility for the provision of care needed to maintain the physical or
mental health of a functionally dependent older adult or other adult suffering
from dementia, who lives in the same residence with such individual, and who
does not receive financial compensation for the care provided. A substantiated
case of abuse, neglect, or exploitation, as defined in Chapter 5 of Title 30,
the 'Disabled Adults and Elder Persons Protection Act,' or pursuant to any other
civil or criminal statute regarding an older adult, shall prohibit a primary
caregiver from receiving benefits under this article unless authorized by the
department to prevent further abuse."
SECTION
19.
This
Act shall become effective on July 1, 2007.
SECTION
20.
All
laws and parts of laws in conflict with this Act are repealed.