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Local attorney Debbie Britt enjoys a cup of coffee at Wake Up Coffee Co. on St. Simons Island. She often meets with clients to discuss the many questions surrounding health issues families are facing.

There is nothing more personal or important than a person’s health. Debbie Britt, Esq., believes this principle is the cornerstone of her law practice. Debbie works with clients to preserve their voices every day. She begins each attorney client relationship with a conversation to learn about the concerns and goals of her clients. The first questions are typically centered around health care issues. Concerns about one day becoming unable to speak for themselves and make important medical decisions are very important for clients to address by putting their wishes in writing. By doing so, they can preserve their voices now and be “heard” later. In Georgia, the concepts of a “living will” and “health care power of attorney” can be covered in one document, i.e. the Georgia Advance Directive for Health Care. In this document, a person can appoint health care agents; describe treatment preferences; and nominate guardians. Statutory form provisions can be referenced in the Official Code of Georgia and specific provisions can be modified or added to fully customize the declarant’s intent and guidance for agents and health care providers. While versions of these forms can be found online or in non-profit entities’ publications, Debbie recommends seeking the advice of an experienced attorney, whenever possible. Attorneys can assist with document preparation and draft custom language to personalize provisions for the individual client. Debbie explains that two of the most important drafting choices to make are (1) who to appoint as health care agent; and (2) how to address the timing of the agents’ authority. For example, should a declarant appoint his/her two adult children from oldest to youngest, in succession? Or, should he/she put the child who lives closest first? Should a different relative or friend be appointed instead? Once the agents are chosen, should they serve in succession? Or, should they all be presently authorized? If all are presently authorized, may any of the appointed agents act alone? These are all questions which can be considered and documented with the assistance of legal counsel. Other customization examples include language regarding medical treatment, memorial instructions, religious preferences, and guardianship concerns. For her elder law clients, Debbie offers enhanced versions of the Georgia Advance Directive for Health Care, adding provisions addressing the unique concerns of aging clients and those with disabilities. For example, inclusion of provisions regarding an agent’s authority to make decisions regarding assisted living facilities, skilled nursing homes, and home care can be invaluable. Having carefully drafted legal documents in place helps everyone – the person needing the help and the loved ones stepping up to provide care.

In addition to the Georgia Advance Directive for Health Care, Debbie points out that there are other important legal documents to consider when preserving client health care preferences. She believes it is important to have a stand-alone HIPAA Release listing the individuals permitted to receive otherwise protected health information. Though HIPAA is mentioned in the statutory form language, agents and providers find it useful to have a separate document addressing these important permissions. Debbie also stresses the importance of preserving client voices regarding financial matters. Health care directives do not address financial authority. Financial matters can be addressed through another Georgia statutory form known as the Georgia Statutory Form Power of Attorney. A financial power of attorney allows a principal to appoint an agent(s) to make financial decisions for the principal. Typically, this agency power co-exists with that of the principal, though some clients choose the power to be “springing” and only arise when the principal has become mentally incapacitated. Though medical decisions are not covered with a financial power of attorney, such a legal document can be critical when health care decisions are being made. The ability for an agent to access financial information and to make payment arrangements for health care goes hand in hand with the ability to decide on medical treatment. Important government benefits (e.g. nursing home Medicaid) eligibility may be determined and sought for long-term care and other medical needs by authorized agents. Putting people in position to help in this manner when needed can make all the difference in achieving the best health care outcomes and quality of life.

In addition to the “agency” documents outlined above, trusts can also be very effective in preserving voices for best health care outcomes. One type of trust, usually referred to as a “revocable living trust”, is particularly useful in making sure incapacitated persons get the health care they would ask for if they could make their own decisions. Revocable living trusts provide for assets disposition upon a person’s passing, just as a will does, but these trusts also typically provide for successor trustees to have access to trust assets upon the occurrence of mental incapacity. The successor trustee can use the trust assets to obtain appropriate medical care.

“What happens when a person needs someone to speak for them and make their decisions for them and there are no legal documents?” is a commonly asked question, says Debbie. If a person has passed the point of being able to read, understand, and sign legal documents like the ones discussed here, guardianship and conservatorship proceedings in probate court are often the next steps. These processes can be complicated, time-consuming, and expensive. While Debbie is able to help clients with these matters, she believes it is best when a person has planned ahead to express their own wishes about who will take care of them and how, stating that, “from a legal perspective, preserving one’s voice with the right legal documents is good for health.”

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