A Guide to Incapacity Planning in Georgia

Learn how I can help you plan for life’s “what ifs”

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Most people think of their Last Will & Testament as the most important document that an estate planning attorney could prepare for them. And yes, a Will is a very important document to have. But let’s not forget: a Will does not “speak” (provide instructions to your loved ones about your estate) until after your death.

In contrast, there are two documents that can have a huge impact on your quality of life and your care during your lifetime: a Durable Power of Attorney (for financial decisions) and an Advance Directive (for healthcare decisions). Both documents enable you to delegate to others certain decision-making powers in the ways that you feel are most appropriate, and to the extent that you want to do so. 

If you’d like to learn more about how I can help you or your family to plan ahead for life’s “what ifs”, contact me.


I always strongly encourage my estate planning clients to complete both of these documents and a HIPPA authorization form. Why? Because so many of the elder law cases I saw while working at Atlanta Legal Aid Society (and many of the queries I get today) are from families who do not have these documents in place and cannot make key decisions for a loved one (often a parent who is suddenly incapacitated or whom gradually wants and needs more help in making good decisions).  

For clients who want basic planning for their financial decision-making, I am happy to help them complete the Georgia statutory Power of Attorney. For clients who have more specific concerns, I can also provide a more customized Power of Attorney to afford even greater protections or to delegate or reserve their decision-making authority in more specific ways. A great Power of Attorney should never be the only document in your estate plan, but it can certainly be one of the most helpful and powerful documents to have ready if and when you need it.

Who Benefits From Georgia Incapacity Planning?

As the population ages, more and more people need the security of having an advance directive in case they become incapacitated. Georgia incapacity plans are designed to protect your property and ensure that you have the care you need should you become incapacitated.

An incapacity plan can be advantageous for people of any age, whether single or married, with children or without, and no matter their income level. It is a vital part of estate planning. Retaining the services of a reputable Georgia Estate Planning Lawyer can be instrumental in ensuring your wishes are followed.


Who Makes Medical Decisions If You Are Incapacitated in Georgia?

The Georgia Code sets out the process for making medical decisions if you are incapacitated and have made no prior plans. The first step is to designate a guardian to make your medical decisions when you are unable to speak for yourself.

If you do not designate a guardian, then the court will appoint a guardian ad litem. This means that they will be appointed by the court but not necessarily by you. 

The court may also appoint a temporary guardian if it deems this necessary in order to provide care and treatment for an incapacitated person.

What Clients Are Saying

Mr. Black took an extraordinary amount of time and preparation with my husband and me to prepare our Last Will and Testament, Power of Attorney, and Advance Directive. I compared prices for the same services and feel that I was given a very fair fee for the work that was done for us. I would highly recommend Paul Black.


Probate Atlanta

After talking with Paul, I knew exactly what I needed to do. He has been with me the whole way, from getting her diagnosed with dementia to helping with all of the legal paperwork and consolidating the finances (after having to find all of them first!), and getting her moved into an assisted living home where she is getting top-notch care. If you need a responsive and caring lawyer, hire Paul!!


Estate Planning Atlanta

Paul does an excellent job of making a connection with his clients. He becomes invested in meeting the needs of his clients. He is helpful and friendly and has lots of knowledge about trusts, wills, etc. It is easy to get in touch with Paul, and he makes a point of staying in touch with you. Great experience all the way around.


Elder Law Georgia

What is Incapacity, and What Does Patient Incapacity Mean?

Patient incapacity means that the patient is no longer able to make decisions about their own health care treatment or finances. If the patient is incapable, then a court-appointed guardian or conservator may make decisions for them. This decision would determine what should happen when the person in charge is not in a sense or incapacitated to make a sound decision.

If you have questions about how to integrate incapacity planning into your estate plan, contact The Law Office of Paul Black. Our experienced team of lawyers will help you understand these complicated law states to help you figure out the best possible solution and way to handle your specific situation, with specific requirements, needs, and conditions.

What is the Permanent Incapacity of a Patient?

According to Georgia Law, the permanent incapacity of a patient is a condition in which the patient suffers from an impairment that will never recover and will remain for the rest of their life.

Permanent incapacity is described as a mental or physical condition that prevents a person from managing their own financial affairs and medical decisions.

The condition may be from:

  • Certain treatments

  • Medical condition

  • Subsequent disability

  • Being terminally ill

Plus, if they are unable to interact with healthcare professionals or other healthcare providers, they may not be legally competent.

To safeguard their well-being, their family members may begin the guardianship process through a court-supervised proceeding. A knowledgeable law firm can help you develop a Georgia estate plan, including an advance directive.

What are the Benefits of Incapacity Planning in Georgia?

Incapacity planning allows a person to name a power of attorney to ensure healthcare professionals follow their wishes even when they are no longer able to voice them. This is also a way to ensure that their assets and finances are managed.

A domestic partner, trusted family member, or adult child authorized to act as a financial and healthcare agent might be responsible for the following decisions:

  • Business transactions and bank accounts

  • Financial decisions

  • Manage investments

  • Manage medical decisions regarding medical treatment options

If there is no power of attorney, the person’s nearest family member or friend will have the power to make medical decisions for them.

What Incapacity Planning Documents are Required for Estate Planning?

Several documents are required for incapacity planning, such as a living will, an advanced health care directive, and a power of attorney.

  • Advanced Health Care Directive: Advance health care directives outline a person’s future medical decisions in advance. They are very important for people who may not be able to make decisions for themselves in the near future.

  • HIPAA Authorization Form: Health Insurance Portability and Accountability Act (HIPAA) authorizes medical providers to release information to specific individuals.

  • Durable Power of Attorney: A power of attorney grants legal authority to another person, the agent, to act on behalf of the individual giving a power of attorney. Power of Attorney Georgia varies in scope and is not always used for medical purposes.

A living will is another necessary document. It sets forth a person’s wishes for medical treatment in the event that they are no longer able to make their wishes known. It is intended to provide guidance for family members who may be faced with the responsibility of making medical decisions on behalf of the patient. A skilled law firm can help you with the necessary documents to ensure medical providers can legally help you.

What is an Advance Directive for Health Care?

Georgia law allows you to appoint someone you trust – for example, a family member or close friend to decide about medical treatment options if you lose the ability to decide for yourself. You can do this by using an Advance Directive for Health Care where you designate the person or persons to make such decisions on your behalf.

(NOTE: In 2007, the Advance Directive for Healthcare replaced the “Durable Power of Attorney for Health Care” and “Living Will” forms that the State of Georgia previously offered. Any Living Will or Durable Power of Attorney that you executed before the law changed is still in effect, but it does not hurt to replace these outdated forms with an Advance Directive.)

You can allow your health care agent to decide about all health care or only about certain treatments. You may also give your agent instructions that he or she has to follow. Your agent can then make sure that health care professionals follow your wishes and can decide how your wishes apply as your medical condition changes. Hospitals, doctors, and other health care providers are guided by your agent’s decisions as if they were your own.


What is a HIPAA Authorization?

Some medical providers have refused to release information, even to spouses and adult children authorized by durable medical powers of attorney, on the grounds that the 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits such releases.

In addition to completing and properly executing an Advance Directive for Health Care, you should also sign a HIPAA Authorization Form that allows the release of medical information to your Agents, your Successor Trustees, your family, and other people whom you designate.

What is a Durable Power of Attorney?

A durable power of attorney allows you to carry on your financial affairs in the event that you become disabled. Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you when you are disabled. This guardianship process is time-consuming, emotionally draining, and expensive, often costing thousands of dollars.

There are generally two types of durable powers of attorney: a “present” durable power of attorney in which the power is immediately transferred to your attorney in fact; and a “springing” or future durable power of attorney that only comes into effect upon your subsequent disability as determined by your doctor.

When you appoint another individual to make financial decisions on your behalf, that individual is called an “attorney in fact.” Anyone can be designated, most commonly your spouse or domestic partner, a trusted family member, or a friend. Appointing a power of attorney assures that your wishes are carried out exactly as you want them, allows you to decide who will make decisions for you, and is effective immediately upon subsequent disability.

Who Can Create a Power of Attorney?

In Georgia, any individual over 18 years of age who is a Georgia resident and who is legally competent can create a power of attorney. (The question of when a person is legally competent or has decision-making “capacity” is a complex one. Since attorneys are not usually physicians or mental health professionals, we must proceed very carefully when working with clients and families on delegating decision-making authority. In cases when families petition a probate court for guardianship of a loved one, an evaluation by a licensed mental health professional is an integral part of the process.)

Who May Act as an Agent Under a Power of Attorney?

In Georgia, an agent may be anyone who is legally competent and over the age of 18. Often, it is a family member such as a spouse, sibling, or child. While more than one person can be named as an agent, naming two or more individuals to act together can prove inconvenient, especially if a power of attorney must be exercised promptly. It is usually more prudent to name one individual as an agent and then another as an alternate.

How Does an Agent Use a Power of Attorney?

Your agent presents the original power of attorney document to the other party involved in the transaction and signs documents on your behalf. Your agent signs his or her own name, followed by the words “Attorney in Fact for John Smith.”

Should You Hire a Law Firm?

An incapacitated person is at a disadvantage if they haven’t taken steps to ensure healthcare power over their medical information and medical decisions is immediately transferred.

Estate planning attorneys can help them outline enforceable advance directives to ensure doctors and other health care providers follow agent instructions and, when such decisions aren’t outlined, the agent’s decisions. Choosing an estate planning attorney to prepare the necessary documents can help provide a secure and happy future in Georgia.

The Law Office of Paul Black possesses significant experience working on behalf of clients, executing advance directives for clients. Find out how we can help you.

Awards & Associations

Paul has been named a SuperLawyers “Rising Star” in the area of Estate Planning and as a member of Georgia’s “Legal Elite” by Georgia Trend magazine. He is also a member of the National Academy of Elder Law Attorneys.

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