I harp frequently on not getting into a position where you end up having to deal with time-consuming and potentially expensive hurdles in life – specifically, legal problems stemming from poorly-prepared or mediocre legal documents. These problems can create a costly, litigious death-by-a-thousand-paper-cuts.
This blog deals with a brief (but potentially very important) illustration of how a legal document as simple as a health care power of attorney requires close examination and review (and in this case revisions) so as to prevent these potential problems.
More particularly, this illustration centers on my revisions to the Georgia health care directive (health care power of attorney). The statutory form is under Section 31-32-4 of the Georgia statutes (statutory means this Georgia health care directive was crafted word-for-word by the Georgia legislature and the format of the directive is available under Georgia law for use by Georgia individuals). Most lawyers (including me) use the Georgia legislative version for our clients.
However, I revised the statutory health care directive, as allowable under Section 31-32-5(b) of the Georgia law, so as to avoid what could be a couple of unexpected and potentially burdensome issues:
One, as shown by my redline copy of these revisions (click here), the Georgia statutory version is not clear as to what triggers the effective start of the document.
The statutory language states the health care agent can make health decisions “when I am unable to communicate any health care decisions” or when “I choose to have my health care agent communicate my health care decision.”
The above two conditions are not clear in terms of whether some further evidence or action reflecting a triggering of either condition is necessary to authorize my agent to act on my behalf.
For example, John’s wife Jane shows up at John’s cardiologist’s office to discuss a medical problem on John’s behalf. John is too sick to attend the office visit. The cardiologist reads John’s health care directive and asks Jane what does she have to reflect either that John is unable to communicate on his own behalf or what assurance or document does Jane have to show that John is now choosing to have Jane act on his behalf? Will the cardiologist require a separate written authorization from John? What if John is so sick that he can no longer communicate any aspect of his care? Will the cardiologist require John’s internist to examine John and provide a statement for Jane to evidence John is now incapable of communication? Will Jane have to reschedule the meeting? Also, underlining these hurdles is the additional burden of dealing with the federal HIPAA medical records restrictions.
I simply do not want any hurdles for my agent. Nor do I wish to spend time and money dealing with a disagreement over the above two conditions. Therefore, for greater clarity my revisions set forth that the health care directive becomes effective at the time I sign it, thus eliminating the need to consider either of the two conditions.
Second, the Georgia statutory version expressly prohibits my health care agent from having authority to deal with my “treatment or involuntary hospitalization for mental or emotional illness, developmental disability, or addictive disease”.
By contrast, I prefer that my health care agent deal with the above circumstances. Accordingly, I revised the directive to eliminate this prohibition. If this prohibition otherwise remains in place, my family’s option will likely be to obtain a court-managed guardianship for purposes of dealing with these particular situations. This court involvement can be time-consuming, costly, and extremely frustrating.