Decision-Making for Incapacitated Patients

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By Edith Haney

In the legal profession, the question often arises when dealing with elderly clients, “Who is the client?” Medical providers may face a similar issue in providing care to patients. If the medical provider determines that the patient is incapable of making decisions regarding his or her care, the provider must then determine who is authorized to make medical, personal and possibly financial decisions, on behalf of the patient.

Georgia law provides several procedures authorizing decision-making on behalf of an incapacitated adult. Georgia statutes outline a procedure for the appointment of a guardian of the person of an incapacitated adult. This procedure involves a court determination that a person is incapacitated. Following this determination, the Court will appoint a guardian of the person (and/or property, as appropriate), for the incapacitated adult (the ward). With limited exceptions, a guardianship of the person removes from the ward, and grants to the guardian, the authority to make decisions regarding his or her person, including medical and health care decisions.

Under Georgia law, there are several alternatives to the guardianship procedure. A competent person may execute advance directives providing for his or her care upon incapacity. Georgia law specifically recognizes a Durable Power of Attorney for Healthcare, a Living Will and a Financial Power of Attorney.

The Living Will is perhaps the most well-known advance directive. This document is essentially a statement to medical providers setting forth a patient’s wishes concerning life support. A medical provider has full discretion in determining whether to honor the patient's wishes.

The Healthcare Power of Attorney is a broader document, specifically authorizing an agent named in the document to make most medical decisions on behalf of an incapacitated patient. These decisions include authorization for medical procedures and treatments, life support decisions, organ donation and autopsy. If a medical provider refuses to follow the directions of an agent, the provider must refer the patient to the care of a provider who will billow the directions of the agent.

Finally, Georgia law recognizes the appointment of an agent for financial purposes. This document may or may not include provisions relative to a patient's care, other than financial aspects such as billing.

Priority among competing authorities is as follows: the direction of an agent under a Healthcare Power of Attorney takes precedence over the provisions of a Living Will. If a guardian of the person is appointed, the authority of the guardian of the person supersedes the authority of an agent under a Healthcare Power of Attorney.

To the greatest extent possible, a patient should be allowed to make medical decisions. However, in the event of incapacity, the medical provider must exercise care to determine what arrangements are in place for decision-making on behalf of the patient. If advance directives have not been executed prior to the incapacity, it becomes necessary to appoint a guardian of the person. Although the care of the patient is paramount, care should also be taken to honor his or her wishes and protect his or her rights of representation.

Edith Haney is a partner at Tisinger Vance  The law firm has offices in Villa Rica, Carrollton.  Edith may be contacted at (770) 214-5118, or you can e-mail her at ehaney@ttvglaw.com.

Source: Western Georgia M.D. News, November 2003