Georgia estate planning documents

Episode 175
Categories: Probate, Resources

If you have a loved one in a Georgia nursing home, then it is important for you to know which estate planning documents will help prevent problems down the road. On this week’s podcast, we welcome attorney Scott Fields to go in depth on the principal Georgia estate planning documents, including advance directives and powers of attorney.

Schenk: Hey out there. Welcome back to the podcast. My name is Rob. I’m going to be your host for this episode. Today we are talking about three types of documents that are going to be important for you and your loved one to execute. If your loved one is going into a nursing home, then these three documents are going to be crucial if something happens, those being the advanced directive for healthcare, power of attorney and then what’s called a POLST. And we are going to get into detail about what each one of these documents does and what effect they have on how your loved one gets treatment.

But before we get into it, please, my only ask is that you like and subscribe to this podcast wherever you get your podcast from. Be sure to go to our YouTube channel, check us out there. All of the podcasts are in video form. You can see our beautiful faces there just like today. You’ll be able to see me talking to our guest in video form. Leave a comment while you’re there. Hit the notification bell. And with that, let’s get into the content.

So again, talking about these documents. They’re going to be extremely important if things happen to your loved one. We’re not doing that alone. We have a guest. Actually he’s a veteran to this show. He’s been on multiple times. His name is Scott Fields.

He is a probate and real estate attorney in Tucker, Georgia. He is married and has four grown-ish sons. Scott grew up in the Atlanta area and has lived in Tucker for over 20 years. Scott graduated from Georgia State University College of Law in 2011. For at least over five years, now six, seven years, Scott was a real estate, small business and probate litigator. Since forming his own firm in 2017, Scott has focused on helping families probate estates and deal with inherited property, and we’re so glad that he is bringing his expertise back to the program. Scott, welcome to the show.

Fields: Thanks very much. Happy to be here.

Schenk: All right. Scott is a veteran of the Nursing Home Abuse Podcast. We’ve had him on at least a few times in the past talking about last wills and testaments, and also I believe – didn’t we have you on for guardianships, now that I’m thinking about it?

Fields: No, I didn’t do guardianships. I was on for probate.

Schenk: Probate, that’s right.

Fields: Probating a will after someone passes.

Schenk: That’s right. Scott and Richard Mollot are competing for the most amount of guest appearances on this podcast for anybody who’s keeping up with that minutiae. Anyways, today we’re having Scott on, as I mentioned at the top of the show, about critical estate planning documents other than the last will. So if you want to know more about that last will, go to the episodes, previous episodes, and we’ll link those in the bottom.

So today, Scott, it looks like you and I are going to be going back and forth on three types of estate planning documents. The first is the advanced directive for healthcare. The second is just a typical durable power of attorney. And then this is something new to me, and again, this is why I defer to you, but the POLST, which is an acronym. So we’ll let you explain that in a minute. But let’s start – what we’ll do, the advanced directive for healthcare, what is it, why is it important, when should it be executed?

What is an advance directive?

Fields: Sure. So an advanced directive for healthcare is basically a document that it actually does quite a few things. You should probably get one as soon as possible, especially during COVID. That will take care of that question real easily. Get one tomorrow.

Advanced directive for healthcare is a combination of a number of forms that we used to call healthcare power of attorney, a living will, HIPAA release and guardianship nomination. So a decade, two decades ago, the state of Georgia kind of combined all those forms into one called an advanced directive for healthcare.

It is a statutory form, which means the text of the form is actually in the law books in Georgia, so you can go and if you have a Lexis or a Westlaw subscription, you can go ahead and download that and format that however you want. People can download those in a lot of different places. The problem with downloading and trying to fill it out on your own is the document is actually pretty complicated, not so much complicated as poorly written. My apologies to any Georgia legislators who are listening to this podcast, but it’s a mess. There are places where the person initials to give power. There are places where the person initials to take away power. So we normally recommend finding whether it’s an attorney or a healthcare professional to get some advice.

But basically, we’ll go through the four parts of the advanced directive, the first one and really the most important one is the healthcare power of attorney part, and it is where you nominate a person to make healthcare decisions for you either because you’re unable to, whether someone has dementia or is incapacitated, or because you simply don’t want to. You’ve had clients, I’ve had clients where you get to a particular point in your life, you’re in the hospital and you’re like, “You know what? I just want – I’m done talking to doctors. Here’s my daughter. Talk to her.” And so you nominate a person to be your healthcare agent and that gives them the ability to make healthcare decisions on your behalf, to choose let’s do this, let’s not do this.

And if that’s the only thing that people sign, and it is possible to just make that choice and do that part of the document, that’s great. We actually have a number of people come in when they turn 18, before they go away to college, and that’s all they do. They go in, they nominate usually their parents, but they will come in. They’ll put some names for healthcare agent. They don’t want to deal with the rest of the document. They sign it and walk away. It’s great. And in that case, it does its job.

Schenk: Okay, so a couple things with this, Scott. One is a comment. The other is a question.

Fields: Sure.

Schenk: My comment is isn’t it funny that the point, in my understanding, the point of making it a statutory document, meaning it is a template that sits in the codebook and theoretically is accessible to every Georgian for a use, it’s not easy to use because it’s kind of complicated, so I think that’s interesting. We’ve made it available for everybody. Here’s something that we will by default say is useful and usable and enforceable, and here is a copy of it for everybody, but it’s kind of difficult. You would still need to get an attorney to kind of look over things for you.

Fields: Yeah.

Schenk: I think that’s kind of interesting. But I will do the best I can to find a downloadable or a link to that statutory template and put it in the show notes.

Fields: So I actually – real quick, I did a blog post on my website earlier this year, I think, that actually does have a link, and it also has instructions on how to fill out the document, just on the basics of filling out the document, because again, it’s pretty complicated. It’s drafted by legislators who are lawyers maybe with the input of doctors and medical professionals, neither of whom, we can all agree, are the best at explaining things in layman’s terms, and so basically kind of need an amphibian, somebody who can kind of look at the document, understand what it means and then explain it to someone whose primary job is not legal and medical jargon.

Schenk: And what Scott is trying to say is that he is the frog for you. Okay, so my question then, Scott, is it is a misconception, is it true that simply for the fact that you’re married does not mean that you can make those decision on behalf of your spouse who might be incapacitated?

Fields: If there is no advanced directive, then Georgia law does give priority, has a priority list of who can make these decisions. And your spouse is pretty high on that list. So if you want to run the risk of having that happen, and the amount of hoops that your spouse will have to jump through to get that, I don’t know, but it makes things easier to have an advanced directive, and if the person who’s on that priority list isn’t perhaps someone that you want to either make those decisions or that you want to burden with having to make those decisions, then do an advanced directive in order to do that. Because again, once you get to a medical facility, once you get to a hospital or someplace and there is no advanced directive, on the practical side, what you’re going to have is the medical professionals will pause. They’ll kind of say, “Hey, wait, hang on a second. We’re going to need to get this done.” And now all of a sudden you’re having to get a lot more people involved, whereas if you’ve got an advanced directive, you can kind of hold it up and hand it to them, or even better, if they’ve already got one on file.

When we do advanced directives, we tell people to send a copy of it to your healthcare professionals, your primary care physician. If you’re living in a facility, go ahead and give a copy of it to the facility management. Send a copy to your health insurance company. Just kind of hand it out like candy so that way you don’t have to deal with it when the time comes.

But short answer, yeah, it’s possible for without an advanced directive for your spouse to make those decisions. It’s just harder.

Schenk: Yeah, it becomes problematic if there’s infighting with regards to what happens…

Fields: Oh heavens, yeah.

Schenk: …to the resident or the patient.

Fields: Yes.

Schenk: Sorry I cut you off, man. Powering along with the advanced directive for healthcare.

Fields: Sure, that’s fine.

Schenk: What else does it do?

Fields: So the other thing it does is what we used to call a living will, which allows you to state some treatment preferences, end-of-life treatment preferences. “I want breathing assistance.” “I don’t want breathing assistance.” “I want food by tube if I can’t take nutrition by mouth.” “Do not resuscitate” – that’s kind of the big one, everybody always asks about it, DNR, but basically if my heart stops, my breathing stops, do you want or does the person want CPR to come in and try to start them back up? A lot of people don’t. Some people do. So the advanced directive allows people to kind of get that in writing and get that out there.

Another thing that it does is a guardian nomination. So basically the advanced directive doesn’t necessarily have to go in front of a court. It’s not something that you have to take and give to the court and have them approve. It’s a document that basically kind of you give to your healthcare providers and to your healthcare agent and it usually just gets used in that situation.

It is possible for an outside person to come in and go to the court and say, “Hey, wait a second.” Either because there’s not an advanced directive and we need to get someone appointed to make a lot of decisions or because the outside person thinks that the agent, the nominated agent, isn’t doing a good job, that person can go to the probate court and ask for guardianship. They can ask their guardian be appointed. And Georgia law allows people to do that, and the good news is that if the person who I guess is incapacitated, that’s the best way to put it, if that person has in the past nominated someone to be the guardian in writing, then Georgia looks at that. That nomination, that choice made by the person, is at the top of the priority list. And after that, you go down, spouse, family, da-da-da-da-da.

I’ve had a case where we had an outside person come in and petition the court for guardianship for someone who was incapacitated, and fortunately that person had already nominated the guardian, and when we went to court, we showed the document, like, “Here’s the nomination of guardian,” and the judge looked at the outside party and said, “What do you have to say?” and they made kind of a weak argument about how they’d do a better job and it was a bad argument and the judge said, “All right, well the person who was nominated is the guardian,” and we moved on. So that’s very helpful. That’s great because a guardianship fight is ugly and expensive and I don’t do those anymore.

Schenk: I can imagine. And I would say that for me, that’s one of the critical reasons why an advanced health directive or an advanced directive of health is important, is that nomination of a guardian. And it comes into play in my experience because you might, your loved one might go into that nursing home with full cognitive capacity, but oftentimes that’s lost. And at the time that it’s lost, they can no longer execute documents. They might not have the capacity to do so, and then at that point, you’re doing what Scott said, which is having to petition the court for guardianship over your loved one and depending on how your family dynamics are, there might be a fight for who gets to be guardian. So doing this before anything happens to your loved one is critical because that can really save you a lot of time, save you a lot of money and save you a lot of fights with your cousin that you haven’t seen in 15 years.

Fields: Yeah. And once you’ve crossed that particular Rubicon where the person can’t sign documents anymore, everything gets much, much more complicated, gets much more expensive and the timelines begin to spread out. And what do you do when there’s an emergency surgery that has to be decided? You don’t want to spend a couple of weeks waiting for a court hearing or waiting for a judge to rule on something. So yeah, this is a big one.

The other big one that we get, especially with younger people, right, as they turn 18, go right into college or just even enter the workforce, but once you turn 18, parents can’t access medical records anymore. And so the advanced directive includes not necessarily a release but it is a statement that the healthcare agent does have the authority to access medical records. So again, we do these for kids going away for school or when they turn 18. They usually nominate their parents. Sometimes they don’t and then I get to tell their parents that I can’t tell them who the kid nominated and, yeah, that’s a fun conversation that they get to go have with their children. But yeah, and that’s very important as well.

And then the last thing that the advanced directive does is it gives the healthcare agent some instructions on what happens after someone passes away. So that involves things such as organ donation, the donation of body for medical research, whether someone wants to be buried or cremated. So by default, the healthcare agent can make all those decisions themselves. If someone has a preference, they can essentially remove that authority on the document and say, “No, no, no, no, no. I don’t want my healthcare agent to choose whether I’m buried or cremated. I want to be buried,” or “I want to be cremated.”

There’s also an interesting part that’s kind of an “other” – it’s the “notes” kind of piece where people kind of put in anything extra. We see it – it’s useful in places or situations where there’s religious observances. We see last rites. We see in certain religions, you can’t do a blood transfusion or things like that. Those instructions go in there. We have also seen things like funeral instructions – that actually happens a lot. “I wish my ashes to be put in this place,” or that sort of thing, because you might as well. It’s there. I’ve also seen someone put in what kind of beer they want served at their funeral, what kind of rock music they want played at their funeral, that sort of thing, and we’ve put it in there. Whether that is enforceable, I don’t know.

Schenk: Exactly. At least it just – no one’s going to file an injunction to get the greatest hits of Journey played at a funeral, right? Or like, “Oh, we’re not going to blast your ashes into space in a rocket ship.”

Fields: You’d be surprised what people go to court over. I wouldn’t be surprised if someone did try to enforce something like that, but I don’t want to be that attorney.

Schenk: Right. Okay, so looks like we’ve beaten up advanced directives for health pretty good. So let’s talk about power of attorney. Again, what are those, what do they do, when should they be executed?

Fields: Sure. So whereas an advanced directive deals with instructions about healthcare, power of attorney deals with essentially your stuff. It’s your property. It’s real estate. It’s what we call personal property, which is moveable, tangible items, and then money and financial assets. Again, stuff is the normal term.

And basically what it does is it appoints a person to make decisions on your behalf regarding your stuff. I mean the agent is what it’s called, the agent always has to make these decisions for your benefit. Once you name someone as your financial agent, they can’t all of a sudden take your bank account, empty it out and go to Disney World. They can – it’s physically possible, but then you can sue them because it’s not legally permissible. So they always have to use your assets on your behalf. But essentially, you’re just authorizing someone else to kind of help out.

We see it a lot with our older clients where they’re sick of going to the bank or they’re sick of writing checks so rather than put their child on the checking account, making it a joint account and causing all sorts of problems in probate, instead we just get a power of attorney, put the kid on the account as a power of attorney and then they can write checks, they can move money around, they can do these sorts of things. They can sell houses. I had a question earlier today about a power of attorney trying to get a house sold, and again, they can deal with tangible personal property like selling clothes, selling jewelry, moving items from a safe deposit box or putting them into a safe deposit box on behalf of the principal, what the person is called who’s making power of attorney.

And you mentioned earlier about durable power of attorney. There’s really kind of two general terms, two general classes of power of attorney. One is called durable. Durable power of attorney is one that starts essentially immediately. As soon as someone signs it, the agent has the authority that’s given in the document. The reason it’s called durable is it lasts through the principal’s incapacitance, which means the person who makes the power of attorney, if they then become incapacitated, dementia kicks in or they’re in a coma, that power of attorney will continue through. Incapacitance used to, long time ago, wipe out power of attorney, so we started doing them, making them durable so that they continued through, because that’s kind of the point, right?

The other kind is called the springing power of attorney, which does not take effect right away. There is a trigger. There is some event that will cause the power of attorney to become active. Usually it is when the person is declared incapacitated by a doctor, medical professional, but it can be anything. Kid moves out of the house, your grandchild gets married, you dye your hair blue – as soon as you dye your hair blue, your power of attorney can kick in, whatever it says in the document, as long as it’s not illegal. I haven’t seen too many weird springing powers of attorney, but again, it’s possible.

And so in a document, the power of attorney can be both durable and springing. It just kind of depends on what the trigger is, but most powers of attorney that we see today are durable, and that includes the statutory form. Just like the advanced directive, the state of Georgia legislature has created kind of a standard document. The text is in the statute, it’s in the law books, so you can go and download it. It is not quite as complicated as the advanced directive, but it is still kind of a mess.

I still prefer people get some advice and get walked through the document, specifically because the document allows the principal, allows the person making the document to grant or withhold certain types of authority, and there are kind of all the basic ones, you know, you can access the bank accounts, sell my real estate, you can do my taxes, you can run a business on my behalf, those sorts of things, and then there are kind of superpowers, which we don’t normally recommend except in very specific cases where you can get the agent the authority to kind of get out of a joint ownership, like a joint tenancy with right of survival. They can get rid of that. They can modify trusts. They can revoke trusts, which is okay in some situations but in some situations, you don’t want people to have that authority. And if you’re doing it yourself and you haven’t talked to anybody and you look there and it says, “Oh, they can do X, Y or Z,” and it turns out Z is probably a really bad idea, makes it very easy to commit fraud or to legally put your estate in a bad place, maybe you don’t want to do Z.

Schenk: Right, right, right.

Fields: And the last thing that a power of attorney does, and especially this form, the form that we use, is that it nominates a conservator. And just like we talked about earlier where a guardian is a person who the court appoints to manage your life, your healthcare, a conservator is a person that a court can appoint to manage your stuff. Just like the advanced directive, the power of attorney doesn’t necessarily go before a court. You hand it to banks. You give it to closing attorneys, that sort of thing.

But an outside party can come in, or anybody can come in and ask the court, say, “Wait a second, I think this agent is doing a bad job and I want to have a conservator appointed by the court.” And just like with guardian, Georgia law allows the person to nominate conservators who they want, and so the power of attorney form has a space that says, “Here are the people that I want to be my conservator.” And again, it avoids or helped avoid or helps shut down quickly those fights over who gets to manage Mom’s stuff.

Schenk: Got you. Okay. And then let’s talk about this last category. I’d never heard of it – the POLST, which is that acronym. First of all, what’s the acronym? What does this do and when should it be executed?

What is a POLST?

Fields: Sure. So a POLST is a physician’s order on life-sustaining treatment, and I just learned about these in January and it’s only been around for a few years. And what it is is I’ve actually got a copy. You’re supposed to print them on pink paper, so I don’t know how the color’s coming through, but this is it, two-sided, single sheet of paper.

Schenk: Looks pink.

Fields: It is indeed pink. State of Georgia – other states, they’re different colors and they have a little bit different information. But a POLST is a document signed by a physician. It is a physician’s order, so it carries a little bit more weight than an advance directive. It is a little more detailed than an advanced directive and it covers some – there’s some overlap between the two, but a POLST and an advanced directive have some areas that one talks about one area and one talks about the other.

So generally a POLST covers three areas and it’s just for life-sustaining treatment. It is just for, “Hey, are we keeping this person alive, and if so, how and to what extent?” So there’s CPR, resuscitation. There’s breathing intervention – is someone going to receive oxygen? And then antibiotics, which the advanced directive doesn’t cover at all.

So those three things are generally what’s covered by the POLST, and where the advanced directive is binary, it’s yes/no, do you want this/do you not want this, the POLST has kind of gradations – I don’t want anything, I want it all or I want some things but not others. And so what this document is is it’s something you should take in. The person should talk with their primary care physician or some other healthcare provider who will then sign the document and then the person will sign the document and then, again, just like the advanced directive, you kind of hand that out to everybody who’s involved with your healthcare.

Schenk: My question is why isn’t the information within the POLST just put into the advanced directive and just make it all a physician’s order?

Fields: Sure, so I don’t know why, because the advanced directive is statutory, which means it has to be done in the legislature.

Schenk: Right.

What is a Georgia statutory POA?

Fields: You know how easy it is to get things done in a legislature, whereas this is something where I think it was advised by an outside council who are made up of – the lady who presented it to us was I believe a nurse and she had been fighting for this for a long, long time. So it’s a little easier to get those sorts of things done. So it’s not a statutory form, but it’s great. It’s very, very helpful, very, very useful and we give it to all our clients when we do estate plannings, when we do wills, powers of attorney, advanced directive. We also hand them, each of them, a copy of the POLST and say, “I can’t do this with you. There’s three choices. Go talk to your doctor.”

Schenk: So Scott, if someone out there listening in the state of Georgia wants more information about this, maybe needs help with these documents, how do they get ahold of you?

Why are these documents important?

Fields: So they can contact me through my website, probably the easiest thing to do. It’s – my last name. You can give me a call. My phone number is on the website, but I’ll give it to you, 404-532-9953. You can also just Google the names of any of these documents and “Georgia,” so “Georgia POLST,” P-O-L-S-T, “Georgia advanced directive,” “Georgia power of attorney.” Don’t get them from other states and don’t get a generic one. So I’m not going to say the ones that you can go to Staples, not to single them out, I love Staples, but if you go to Staples and you get a medical form or an estate planning form, sometimes those are not specific and they don’t comply with Georgia law.

Schenk: Staples sells those?

Fields: I haven’t seen them at Staples. I have had people come to me with Office Depot, Office Max, that’s what they tell me later, “Yeah, I got my mom a will off Office Max. We bought a form,” and those are not great. My firm primarily does probate administrations, estate administration, doing the legal stuff after someone passes away, and whenever I hear that someone got one of these forms that can be downloaded or bought at a store, then my ears kind of perk up because this usually means that someone’s going to end up having to pay us a lot more to fix an issue.

Schenk: Right.

Fields: We’re dealing with a couple of cases right now with a will where there’s two words that are lacking and because of that, it ends up costing my client, so far it’s been maybe 700 to 1,000 to fix the problem just because that’s what it costs because now we’ve got to go find all sorts of people.

Schenk: It’s 500 a word.

Fields: Yeah. Exactly.

Schenk: Take heed to what Scott is saying. It’s very important. I would recommend that while you are able to do these things with your loved ones, have them assign these documents. Have them reviewed by an attorney, particularly Scott if you can. Lots of great information today, Scott. Super appreciate you coming on, talking about these documents.

Fields: Thank you. Glad to help.

Schenk: Reach out to Scott if you can and thank you so much, Scott.

Fields: Yeah, you’re very welcome.

Schenk: I feel like Scott is like an official co-host of this program for how many times he has been on the show. So we’ll have a link to his website as well as his blog post dealing with these issues like the power of attorney, advanced healthcare directives, these types of things for your information and use. Reach out to him if you have questions.