LIVING WILLS IN
GEORGIA

CHAPTER 32

Sec.

31-32-1. Legislative findings.

31-32-2. Definitions.

31-32-3. Execution; witnesses; form.

31-32-4. Patients in hospitals or skilled nursing facilities.

31-32-5. Revocation.

31-32-6. Period of effectiveness.

31-32-7. Immunity of participants from liability.

31-32-8. Conditions precedent to withholding or withdrawal of life-sustaining procedures; physician's failure or refusal to comply with living will.

31-32-9. Living will as not constituting suicide; effect of living will on insurance; restriction on health care facilities' preparing living wills.

31-32-10. Concealment or damage of living will; coercion; criminal homicide.

31-32-11. Effect of chapter on other legal rights and duties.

31-32-12. Construction of chapter in relation to Title 53.

Cross references. - Durable power of attorney for health care, Ch. 36, T. 31. 

Cardiopulmonary resuscitation, Ch. 39, T. 31. 

 

31-32-1. Legislative findings.

 (a)  The General Assembly finds that modern medical technology has made possible the artificial prolongation of human life. 

(b)  The General Assembly further finds that, in the interest of protecting individual autonomy, such prolongation of life for persons with a terminal condition, a coma, or a persistent vegetative state may cause loss of patient dignity and unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the patient. 

(c)  The General Assembly further finds that there exists considerable uncertainty in the medical and legal professions as to the legality of terminating the use of life-sustaining procedures in certain situations. 

(d)  In recognition of the dignity and privacy which patients have a right to expect, the General Assembly declares that the laws of the State of Georgia shall recognize the right of a competent adult person to make a written directive, known as a living will, instructing his physician to withhold or withdraw life-sustaining procedures in the event of a terminal condition, a coma, or a persistent vegetative state. 

(Code 1981, 31-32-1, enacted by Ga. L. 1984, p. 1477, 1; Ga. L. 1992, p. 1926, 1.)

As used in this chapter, the term: 

(1) "Attending physician" means the physician who has been selected by or assigned to the patient and who has assumed primary responsibility for the treatment and care of the patient; provided, however, that if the physician selected by or assigned to the patient to provide such treatment and care directs another physician to assume primary responsibility for such care and treatment, the physician who has been so directed shall, upon his or her assumption of such responsibility, be the "attending physician." 

(2) "Coma" means a profound state of unconsciousness caused by disease, injury, poison, or other means and for which it has been determined that there exists no reasonable expectation of regaining consciousness.  The procedure for establishing a coma is as follows: two physicians, one of whom must be the attending physician, who, after personally examining the declarant, shall certify in writing, based upon conditions found during the course of their examination, that: 

(A) The declarant has been in a profound state of unconsciousness for a period of time sufficient for the declarant's physicians to conclude that the unconscious state will continue; and 

(B) There exists no reasonable expectation that the declarant will regain consciousness. 

(3) "Competent adult" means a person of sound mind who is 18 years of age or older. 

(4) "Declarant" means a person who has executed a living will authorized by this chapter. 

(5) "Hospital" means a facility which has a valid permit or provisional permit issued under Chapter 7 of this title and which is primarily engaged in providing to inpatients, by or under the supervision of physicians, diagnostic services and therapeutic services for medical diagnosis, treatment, and care of injured, disabled, or sick persons. 

(6) "Life-sustaining procedures" means any medical procedures or interventions, which, when applied to a patient in a terminal condition or in a coma or persistent vegetative state with no reasonable expectation of regaining consciousness or significant cognitive function, would serve only to prolong the dying process 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" may include, at the option of the declarant, the provision of nourishment and hydration, but shall not include the administration of medication to alleviate pain or the performance of any medical procedure deemed necessary to alleviate pain. 

(7) "Living will" means a written document voluntarily executed by the declarant in accordance with the requirements of Code Section 31-32-3 or 31-32-4. 

(8) "Patient" means a person receiving care or treatment from a physician. 

(9) "Persistent vegetative state" means a state of severe mental impairment in which only involuntary bodily functions are present and for which there exists no reasonable expectation of regaining significant cognitive function.  The procedure for establishing a persistent vegetative state is as follows: two physicians, one of whom must be the attending physician, who, after personally examining the declarant, shall certify in writing, based upon conditions found during the course of their examination, that: 

(A) The declarant's cognitive function has been substantially impaired; and 

(B) There exists no reasonable expectation that the declarant will regain significant cognitive function. 

(10) "Physician" means a person lawfully licensed in this state to practice medicine and surgery pursuant to Article 2 of Chapter 34 of Title 43. 

(11) "Reasonable expectation" means the result of prudent judgment made on the basis of the medical judgment of a physician. 

(12) "Skilled nursing facility" means a facility having a valid permit or provisional permit issued under Chapter 7 of this title and which provides skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis. 

(13) "Terminal condition" means incurable condition caused by disease, illness, or injury which, regardless of the application of life-sustaining procedures, would produce death.  The procedure for establishing a terminal condition is as follows:  two physicians, one of whom must be the attending physician, who, after personally examining the declarant, shall certify in writing, based upon conditions found during the course of their examination, that: 

(A) There is no reasonable expectation for improvement in the condition of the declarant; and 

(B) Death of the declarant from these conditions will occur as a result of such disease, illness, or injury. 

(Code 1981, 31-32-2, enacted by Ga. L. 1984, p. 1477, 1; Ga. L. 1992, p. 1926, 2.)

31-32-3. Execution; witnesses; form.

Statute text

(a)  Any competent adult may execute a document directing that, should the declarant have a terminal condition, life-sustaining procedures be withheld or withdrawn. Such living will shall be signed by the declarant in the presence of at least two competent adults who, at the time of the execution of the living will, to the best of their knowledge: 

(1) Are not related to the declarant by blood or marriage; 

(2) Would not be entitled to any portion of the estate of the declarant upon the declarant's decease under any testamentary will of the declarant, or codicil thereto, and would not be entitled to any such portion by operation of law under the rules of descent and distribution of this state at the time of the execution of the living will; 

(3) Are neither the attending physician nor an employee of the attending physician nor an employee of the hospital or skilled nursing facility in which the declarant is a patient; 

(4) Are not directly financially responsible for the declarant's medical care; and 

(5) Do not have a claim against any portion of the estate of the declarant. 

    (b)  The declaration shall be a document, separate and self-contained. Any declaration which constitutes an expression of the declarant's intent shall be honored, regardless of the form used or when executed.  Declarations executed on or after March 28, 1986, shall be valid indefinitely unless revoked.  A declaration similar to the following form or in substantially the form specified under prior law shall be presumed on its face to be valid and effective:



 

LIVING WILL

(This Living Will Does Not Concern the Disposition of My Assets)

 

Living will made this ____________ day of ____________ (month, ________ year).

I, _______________________________________________, being of sound mind, willfully and voluntarily make known my desire that my life shall not be prolonged under the circumstances set forth below and do declare as follows.

 

1.            If at any time I should (check each option desired)

(_____) have a terminal condition,

(_____) become in a coma with no reasonable expectation of regaining consciousness, or

(_____) become in a persistent vegetative state with no reasonable expectation of regaining significant cognitive function, as defined in and established in accordance with the procedures set forth in paragraphs (2), (9), and (13) of Code Section 31-32-2 of the Official Code of Georgia Annotated,

I direct that the application of life-sustaining procedures to my body (check the option desired):

(_____)                   including nourishment and hydration,

(_____)                   including nourishment but not hydration, or

(_____)                  excluding nourishment and hydration,

be withheld or withdrawn and that I be permitted to die;

 2. In the absence of my ability to give directions regarding the use of such life-sustaining procedures, it is my intention that this living will shall be honored by my family and physician(s) as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences from such refusal;

3. I understand that I may revoke this living will at any time;

4. I understand the full import of this living will, and I am at least 18 years of age and am emotionally and mentally competent to make this living will; and

5. If I am a female and I have been diagnosed as pregnant, this living will shall have no force and effect unless the fetus is not viable and I indicate by initialing after this sentence that I want this living will to be carried out. (Initial______________)

 

Signed__________________________________________

____________ (City), ____________ (County), and ____________ (State of Residence).

 

I hereby witness this living will and attest that:

 

(1) The declarant is personally known to me and I believe the declarant to be at least 18 years of age and of sound mind;

(2) I am at least 18 years of age;

(3) To the best of my knowledge, at the time of the execution of this living will, I:

(A) Am not related to the declarant by blood or marriage;

(B) Would not be entitled to any portion of the declarant's estate by any will or by operation of law under the rules of descent and distribution of this state;

(C) Am not the attending physician of declarant or an employee of the attending physician or an employee of the hospital or skilled nursing facility in which declarant is a patient;

 (D) Am not directly financially responsible for the declarant's medical care; and

(E) Have no present claim against any portion of the estate of the declarant;

(4) Declarant has signed this document in my presence as above instructed, on the date above first shown.

_________________________________________________________ Witness

_________________________________________________________ Address of Witness


_________________________________________________________ Witness

_________________________________________________________ Address of Witness

Additional witness required when living will is signed in a hospital or skilled nursing facility.

 

I hereby witness this living will and attest that I believe the declarant to be of sound mind and to have made this living will willingly and voluntarily.

_________________________________________________________  Witness

The witness is not Medical director of skilled nursing facility or staff physician not participating in care of the patient or chief  of  the  hospital medical staff  or staff physician  or  hospital designee not participating in care of the patient."

 (Code 1981, 31-32-3, enacted by Ga. L. 1984, p. 1477, 1; Ga. L. 1986, p. 445, 2; Ga. L. 1989, p. 1182, 1; Ga. L. 1992, p. 1926, 3; Ga. L. 1993, p. 91, 31.)

31-32-4. Patients in hospitals or skilled nursing facilities.

Statute text

A living will shall have no force or effect if the declarant is a patient in a hospital or skilled nursing facility at the time the living will is executed unless the living will is signed in the presence of the two witnesses as provided in Code Section 31-32-3 and, additionally, is signed in the presence of either the chief of the hospital medical staff, any physician on the medical staff who is not participating in the care of the patient, or a person on the hospital staff who is not participating in the care of the patient designated by the chief of staff and the hospital administrator, if witnessed in a hospital, or the medical director or any physician on the medical staff who is not participating in the care of the patient, if witnessed in a skilled nursing facility. 

History

(Code 1981, 31-32-4, enacted by Ga. L. 1984, p. 1477, 1; Ga. L. 1989, p. 1182, 2; Ga. L. 1992, p. 1926, 4.)

31-32-5. Revocation.

Statute text

(a)  A living will may be revoked at any time by the declarant, without regard to his mental state or competency, by any of the following methods: 

(1) By being canceled, defaced, obliterated, burnt, torn, or otherwise destroyed by the declarant or by some person in his presence and by his direction; 

(2) By the declarant or a person acting at the direction of the declarant signing and dating a written revocation expressing the intent of the declarant to revoke. In order to be effective, such a written revocation must clearly express an intention to revoke a living will as opposed to a will or wills relating to the disposition of property after death; and without limiting the generality of the foregoing, it is specifically provided that the revocation clause which is customarily included in a will relating to the disposition of property and which provides for the revocation of "all other wills" of the testator shall not operate to revoke a living will without further evidence of a specific intent to revoke the living will. Such revocation shall become effective only upon communication to the attending physician by the declarant or by a person acting at the direction of the declarant. The attending physician shall record in the patient's medical record the time and date when he received notification of the written revocation; or 

(3) By any verbal or nonverbal expression by the declarant of his intent to revoke the living will. In order to be effective, such an oral revocation must clearly express an intention to revoke a living will as opposed to a will relating to the disposition of property after death. Such revocation shall become effective only upon communication to the attending physician by the declarant or by a person acting at the direction of the declarant. The attending physician shall record in the patient's medical record the time, date, and place of the revocation and the time, date, and place, if different, when he received notification of the revocation. 

(b)  Any person who participates in the withholding or withdrawal of life-sustaining procedures pursuant to a living will, as authorized by this chapter, which person has actual knowledge that such living will has been properly revoked, shall not have any civil or criminal immunity otherwise granted under this chapter for such conduct. 

History

(Code 1981, 31-32-5, enacted by Ga. L. 1984, p. 1477, 1; Ga. L. 1987, p. 322, 1.)

31-32-6. Period of effectiveness.

Statute text

(a)  A living will executed on or after March 28, 1986, shall be effective from the date of execution thereof unless revoked in a manner prescribed in Code Section 31-32-5. 

(b)  A living will executed prior to March 28, 1986, in the form specified by prior law shall be effective for a period of seven years from the date of execution thereof, except that, if the declarant crosses through or otherwise marks over the paragraph of such a living will relating to the seven-year period of effectiveness of the living will so as to indicate an intention to defeat the operation of such paragraph, and if the declarant signs or initials the living will in the area of the stricken paragraph, then the living will shall continue in effect until and unless revoked in a manner prescribed in Code Section 31-32-5. 

History

(Code 1981, 31-32-6, enacted by Ga. L. 1984, p. 1477, 1; Ga. L. 1986, p. 445, 1; Ga. L. 1991, p. 94, 31.)

31-32-7. Immunity of participants from liability.

Statute text

(a)  No physician nor any person acting under his direction and no hospital, skilled nursing facility, nor 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 from a patient or who otherwise participates in good faith therein shall be subject to any civil liability therefor. No physician nor any person acting under his direction and no hospital, skilled nursing facility, nor 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 from a patient or who otherwise participates in good faith therein shall be guilty of any criminal act therefor, nor shall any such person be guilty of unprofessional conduct therefor. 

(b)  No person who witnesses and attests a living will in good faith and in accordance with Code Section 31-32-3 shall be civilly or criminally liable or guilty of unprofessional conduct for such action. 

History

(Code 1981, 31-32-7, enacted by Ga. L. 1984, p. 1477, 1.)

31-32-8. Conditions precedent to withholding or withdrawal of life-sustaining procedures; physician's failure or refusal to comply with living will.

Statute text

(a)  Prior to effecting a withholding or withdrawal of life-sustaining procedures from a patient pursuant to a living will, the attending physician: 

(1) Shall determine that, to the best of his knowledge, the declarant patient is not pregnant, or if she is, that the fetus is not viable and that the declarant's living will specifically indicates that the living will is to be carried out; 

(2) Shall, without delay after the diagnosis of a terminal condition of the declarant, take the necessary steps to provide for the written certification required by Code Section 31-32-2 of the declarant's terminal condition, coma, or persistent vegetative state; 

(3) Shall make a reasonable effort to determine that the living will complies with subsection (b) of Code Section 31-32-3; and 

(4) Shall make the living will and the written certification of the terminal condition, coma, or persistent vegetative state a part of the declarant patient's medical records. 

(b)  The living will shall be presumed, unless revoked, to be the directions of the declarant regarding the withholding or withdrawal of life-sustaining procedures. No person shall be civilly liable for failing or refusing in good faith to effectuate the living will of the declarant patient. The attending physician who fails or refuses to comply with the declaration of a patient pursuant to this chapter shall endeavor to advise promptly the next of kin or legal guardian of the declarant that such physician is unwilling to effectuate the living will of the declarant patient. The attending physician shall thereafter at the election of the next of kin or the legal guardian of the declarant: 

(1) Make a good faith attempt to effect the transfer of the qualified patient to another physician who will effectuate the declaration of the patient; or 

(2) Permit the next of kin or legal guardian to obtain another physician who will effectuate the declaration of the patient. 

History

(Code 1981, 31-32-8, enacted by Ga. L. 1984, p. 1477, 1; Ga. L. 1992, p. 1926, 5.)

31-32-9. Living will as not constituting suicide; effect of living will on insurance; restriction on health care facilities' preparing living wills.

Statute text

(a)  The making of a living will pursuant to this chapter shall not, for any purpose, constitute a suicide. 

(b)  The making of a living will pursuant to this chapter shall not restrict, inhibit, or impair in any manner the sale, procurement, issuance, or enforceability of any policy of life insurance, nor shall it be deemed to modify the terms of an existing policy of life insurance. No policy of life insurance shall be legally impaired or invalidated in any manner by the making of a living will pursuant to this chapter or by the withholding or withdrawal of life-sustaining procedures from an insured patient, nor shall the making of such a living will or the withholding or withdrawal of such life-sustaining procedures operate to deny any additional insurance benefits for accidental death of the patient in any case in which the terminal condition of the patient is the result of accident, notwithstanding any term of the policy to the contrary. 

(c)  No physician, hospital, skilled nursing facility, or other health 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 a living will as a condition for being insured for, or receiving, health care services. 

(d)  No hospital, skilled nursing facility, or other medical or health care facility shall prepare or offer to prepare living wills unless specifically requested to do so by a person desiring to execute a living will. For purposes of this article, a person in the custody of the Department of Corrections shall not be deemed to be a patient within the meaning of this article, nor shall a correctional facility be deemed to be a hospital, skilled nursing facility, nor any other medical or health care facility.

History

(Code 1981, 31-32-9, enacted by Ga. L. 1984, p. 1477, 1; Ga. L. 1985, p. 455, 1; Ga. L. 1992, p. 1926, 6.)

31-32-10. Concealment or damage of living will; coercion; criminal homicide.

Statute text

Any person who willfully conceals, cancels, defaces, obliterates, alters, or damages the living will of another without such declarant's consent or who witnesses a living will knowing at the time he is not eligible to witness such living will under Code Section 31-32-3 or who coerces or attempts to coerce a person into making a living will shall be guilty of a misdemeanor. Any person who falsifies or forges the living will of another or willfully conceals or withholds personal knowledge of a revocation as provided in Code Section 31-32-5 with the intent to cause a withholding or withdrawal of life-sustaining procedures contrary to the wishes of the declarant and, thereby, because of any such act, directly causes life-sustaining procedures 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. 

History

(Code 1981, 31-32-10, enacted by Ga. L. 1984, p. 1477, 1.)

31-32-11. Effect of chapter on other legal rights and duties.

Statute text

(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 in any lawful manner. In such respect the provisions of this chapter are cumulative. 

(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 a declaration to consent to the use or withholding of life-sustaining procedures in the event of a terminal condition, a coma, or a persistent vegetative state. 

(d)  Unless otherwise specifically provided in a durable power of attorney for health care, a declaration under this chapter is ineffective and inoperative as long as there is an agent available to serve pursuant to a durable power of attorney executed in accordance with the provisions of Chapter 36 of this title, the "Durable Power of Attorney for Health Care Act," which grants the agent authority with respect to the withdrawal or withholding of life-sustaining or death-delaying treatment under the same circumstances as those covered by a declaration under this chapter. 

History

(Code 1981, 31-32-11, enacted by Ga. L. 1984, p. 1477, 1; Ga. L. 1992, p. 1926, 7.)

31-32-12. Construction of chapter in relation to Title 53.

Statute text

This chapter is wholly independent of the provisions of Title 53, relating to wills, trusts, and the administration of estates, and nothing in this chapter shall be construed to affect in any way the provisions of said Title 53. 

History

(Code 1981, 31-32-12, enacted by Ga. L. 1984, p. 1477, 1.)