Who Can Speak for You? Advance Directives and HIPAA in Georgia

A Georgia advance directive for health care is the document that names who makes your medical decisions when you cannot make them yourself. HIPAA is the federal privacy rule that controls who is allowed to be told anything about your condition at all. Two different problems, and most estate plans in Georgia solve only the first one.

The gap shows up in a hospital hallway in Marietta or Canton, usually at an hour when nobody is at their best. A family arrives, someone asks how their mother is doing, and the answer is that the staff cannot say.

What is a Georgia advance directive for health care?

Georgia uses one combined form. Since July 1, 2007, the Georgia Advance Directive for Health Care has replaced the older pairing of a living will and a separate durable power of attorney for health care, and it does two jobs in a single document.

It names a health care agent. That is the person who speaks for you once your attending physician determines you cannot make or communicate your own decisions. Until that point you remain in charge, and your agent's authority does not override yours.

It also records your own treatment preferences, including what you want at the end of life. That part matters more than people expect. An agent carrying out instructions is in a very different position from an agent guessing at them in a waiting room with three siblings watching.

Who can witness a Georgia advance directive?

Two adults, both at least 18 and of sound mind. They do not have to be present at the same time. Georgia law disqualifies several people from serving: your named health care agent, anyone who would knowingly inherit from you or gain financially from your death, and anyone directly involved in your health care. No more than one of the two may be an employee, agent, or medical staff member of the facility where you are receiving care.

Georgia does not require notarization for this form, which surprises people who assume every legal document needs a notary. The witness rules are the part that gets documents rejected, and a directive that fails on execution fails at exactly the moment it was written for.

Who makes medical decisions in Georgia if you have no advance directive?

Nobody automatically, in the way families expect.

A spouse is not handed blanket medical authority by marriage. An adult child is not handed it by being the one who drove up from Powers Ferry at two in the morning. Providers work from their own policies and from Georgia's rules on who may consent, and when a family does not agree, or when the person who knows the patient best is not the person a policy points to, the path forward can require a court.

That is a guardianship or conservatorship proceeding in the probate court of the county where the person lives. In Cobb County, that is the Probate Court on Waddell Street in Marietta. In Cherokee County, it is the Probate Court in the Justice Center in Canton. It costs money, it takes time, and it happens on the public record, during a week when a family has none of those three to spare.

A directive signed years earlier avoids all of it.

Does an advance directive let your family see your medical records?

Partly. This is where most plans have a hole in them.

Federal privacy rules under HIPAA control who may receive your health information. A named health care agent acting under a valid advance directive is generally treated as your personal representative for the decisions the directive covers, which means the agent should be able to get the information those decisions require.

In practice, that is not always how the phone call goes. Records departments apply their own procedures, out-of-state providers apply different ones, and a family member who is not the named agent has no standing whatsoever.

What a HIPAA authorization adds

A separate HIPAA authorization names the people you want to be able to call and ask. It sits alongside the directive and settles the argument before it starts.

Sign it at the same time. It costs nothing extra to prepare, and it is the difference between a daughter who gets an answer on Sunday night and one who is waiting on a records request Monday.

What is the difference between a health care agent and a financial power of attorney in Georgia?

Two separate documents. Neither one covers for the other.

The health care agent named in your advance directive makes medical decisions. A financial power of attorney names an agent to handle money and property: paying the mortgage, dealing with the bank, managing insurance, filing taxes.

Georgia treats them differently at execution. The Georgia Power of Attorney Act, which took effect in 2017, requires a financial power of attorney to be signed by the principal, witnessed, and notarized, and the witness and the notary have to be two different people. Stricter than the directive, and a common place for a do-it-yourself form to fail.

Someone who can consent to a surgery but cannot pay the premium that keeps the coverage in place is half prepared. Most complete estate plans in Georgia include both documents, plus a will, and for many families a trust. If your paperwork was signed twenty years ago, it was written under Georgia statutes that no longer exist in that form.

How do you talk to a parent who will not plan?

This is the version of the question we hear most, and it is rarely a legal problem first.

Two things tend to help. Start with a single document rather than the whole plan. Asking a parent to name someone who can talk to a doctor is a much smaller request than asking them to divide an estate, and it is the document that protects them soonest.

Then make it mutual. Adult children who complete their own directive first, and say so, get further than the ones who arrive with a folder and a deadline. It stops being something done to a parent and becomes something a family is doing together.

If capacity is already in question, that window may be closing, and the alternative is the guardianship route above. Worth knowing before another year goes by.

What to do next

If you have no advance directive, that is the first document to put in place. If you have one signed before 2007, it predates Georgia's current combined form and should be looked at.

At Perigon you work directly with your attorney on this, and we will tell you plainly if what you already have is fine. Our Woodstock, Kennesaw, and Powers Ferry offices serve families across Cherokee, Cobb, north Fulton, and the surrounding counties.

You can download our Georgia advance directive overview, or schedule a consultation and we will walk through what you have and what is missing.

This article is general information about Georgia law and not legal advice about your situation. The right answer depends on your facts and on current Georgia law.