If you read this column regularly, you have seen the recommendations that you spare your family the burden and heartache of guessing your medical decisions should someone need to make them on your behalf.
Since you’ve surely heeded such suggestions, and are part of the 18 to 36 percent of Americans who have legally memorialized their health care decisions, this column is not for you. Instead, this column is for your Great-Aunt Sue (your late mother’s best friend) or the elderly neighbor that always waves when you pass — those individuals with whom you have relationships but do not feel comfortable asking whether they’ve made those hard decisions. What if they should fall ill and be unable to communicate their wishes? How can you help, without an Advance Directive or its predecessor, the Durable Power of Attorney for Health Care, naming you as his or her decision maker?
Georgia law provides a priority list of those who will be granted authority to make medical decisions on behalf of an incapacitated adult. In the case of Great-Aunt Sue, the following individuals would be able to consent to medical treatment on her behalf, in this order: her spouse, her adult children, her adult siblings, her adult grandchildren, her adult nieces and/or nephews, and finally, any “adult friend” who has exhibited special care and concern for her, has knowledge of her wishes, and who is willing to make those hard decisions for Sue. (Her parents and grandparents would also be able to make these decisions, but as is the case with most great-aunts — even unofficial ones — they are long since deceased.) But what if Great-Aunt Sue outlived her husband, never had any children, and has survived all of her siblings and their children? What if Great-Aunt Sue has friends who are also of advanced age and unable to help Sue in her time of need?
The Georgia General Assembly recognized the conundrum facing Great-Aunt Sue, and in 2010, amended the medical consent and guardianship laws of the state to address her needs, in an effort to protect Sue and other “unbefriended elders.” (This term is not my own, and while admittedly depressing, it reflects the reality that there are elderly individuals who are without family or friends able and willing to tackle their long-term care and end-of-life decisions.)
An adult guardianship is a proceeding wherein the Probate Court awards decision-making authority over an adult to another person. Given the extent that such proceeding infringes on personal autonomy and liberty, the proceeding is not to be undertaken lightly.
With the 2010 amendments, the Georgia General Assembly created a mechanism that allows a court to quickly appoint an individual — called a “temporary medical consent guardian” — to handle these medical decisions for Great-Aunt Sue and others like her.
The process is as follows: if there are no “priority list” individuals willing to serve, any person may petition the court to be appointed as temporary medical consent guardian. The judge must be satisfied that there is an urgent need for medical decisions, that Sue cannot make her own decisions, that no other individual has authority to make such decisions and that the person petitioning is a suitable decision maker.
The court must hold a preliminary hearing on the matter, where the ward’s appointed attorney will be present, within 72 hours. Certainly, making someone else’s medical decisions is a serious undertaking, and the court treats the request to do so with appropriate deference.
Once the judge is satisfied that there is a need for a temporary medical consent guardian, and that the individual requesting appointment is the most suitable candidate, he or she will be appointed. (As you’ll be required to attend at least one hearing, I recommend that you seek out an experienced probate attorney if your own Great-Aunt Sue requires this assistance.)
If Sue’s wishes are not known, the temporary medical consent guardian will be required to act in her best interests. (Additionally, the temporary medical consent guardian cannot withdraw life-sustaining procedures without court permission.)
So, you’ve satisfied the legal requirements, and been appointed as temporary medical consent guardian. But Sue’s not out of the woods just yet, and there’s a reason it’s called a temporary medical consent guardian. The arrangement and your appointment expire after 60 days of serving in such role, absent earlier termination.
Before such expiration, you’ll need to petition the court again to be appointed Great-Aunt Sue’s guardian on a more permanent basis. The procedures are similar, but as the urgency of the situation has (hopefully) subsided, the pace is a bit slower. Again, if you find yourself needing to assist an elderly acquaintance in this manner, I recommend that you seek the advice of an experienced probate attorney as any delay could be detrimental.
Of course, the recommendation remains: memorialize your own health care decisions (including who has the authority to make your medical decisions if you cannot) in a legally enforceable way, and save your family from having to do it for you. But know that there’s still a way to help those like Great-Aunt Sue, even in the absence of such documents.