Revocation; Declarant's Marriage or Appointment of a Guardian

  1. Law
  2. Georgia Code
  3. Health
  4. Advance Directives for Health Care
  5. Revocation; Declarant's Marriage or Appointment of a Guardian

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  1. An advance directive for health care may be revoked at any time by the declarant, without regard to the declarant's mental state or competency, by any of the following methods:
    1. By completing a new advance directive for health care that has provisions which are inconsistent with the provisions of a previously executed advance directive for health care, living will, or durable power of attorney for health care; provided, however, that such revocation shall extend only so far as the inconsistency exists between the documents and any part of a prior document that is not inconsistent with a subsequent document shall remain unrevoked;
    2. By being obliterated, burned, torn, or otherwise destroyed by the declarant or by some person in the declarant's presence and at the declarant's direction indicating an intention to revoke;
    3. By a written revocation clearly expressing the intent of the declarant to revoke the advance directive for health care signed and dated by the declarant or by a person acting at the declarant's direction. If the declarant is receiving health care in a health care facility, revocation of an advance directive for health care will become effective only upon communication to the attending physician by the declarant or by a person acting at the declarant's direction. The attending physician shall record in the declarant's medical record the time and date when the attending physician received notification of the written revocation; or
    4. By an oral or any other clear expression of the intent to revoke the advance directive for health care in the presence of a witness 18 years of age or older who, within 30 days of the expression of such intent, signs and dates a writing confirming that such expression of intent was made. If the declarant is receiving health care in a health care facility, revocation of an advance directive for health care will become effective only upon communication to the attending physician by the declarant or by a person acting at the declarant's direction. The attending physician shall record in the declarant's medical record the time, date, and place of the revocation and the time, date, and place, if different, when the attending physician received notification of the revocation. Any person, other than the health care agent, to whom an oral or other nonwritten revocation of an advance directive for health care is communicated or delivered shall make all reasonable efforts to inform the health care agent of that fact as promptly as possible.
  2. Unless an advance directive for health care expressly provides otherwise, if after executing an advance directive for health care, the declarant marries, such marriage shall revoke the designation of a person other than the declarant's spouse as the declarant's health care agent, and if, after executing an advance directive for health care, the declarant's marriage is dissolved or annulled, such dissolution or annulment shall revoke the designation of the declarant's former spouse as the declarant's health care agent.
  3. An advance directive for health care which survives disability, incapacity, or incompetency shall not be revoked solely by the appointment of a guardian or receiver for the declarant. Absent an order of the probate court or superior court having jurisdiction directing a guardian of the person to exercise the powers of the declarant under an advance directive for health care which survives disability, incapacity, or incompetency, the guardian of the person has no power, duty, or liability with respect to any health care matters covered by the advance directive for health care; provided, however, that no order usurping the authority of a health care agent known to the proposed guardian shall be entered unless notice is sent by first-class mail to the health care agent's last known address and it is shown by clear and convincing evidence that the health care agent is acting in a manner inconsistent with the power of attorney.

(Code 1981, §31-32-6, enacted by Ga. L. 2007, p. 133, § 2/HB 24.)

Law reviews.

- For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code Section 31-36-6, which was subsequently repealed but was succeeded by provisions in this Code section are included in the annotations for this Code section.

Revocation held involuntary.

- When an attorney-in-fact sought to enjoin the attorney-in-fact's siblings from enforcing a revocation of their parent's durable health care power of attorney, the trial court did not err under former O.C.G.A. § 31-36-6(a) in finding that the revocation had not been voluntary; although the trial court concluded that the parent signed the revocation of the power of attorney, the trial court also found that the siblings' actions in making plans and removing the parent from the parent's home by force were wrongful and that the siblings knew or should have known that the parent, having been diagnosed with dementia since 2005, lacked the mental capacity and competency to execute the purported revocation in 2006. Luther v. Luther, 289 Ga. App. 428, 657 S.E.2d 574 (2008), cert. denied, No. S08C0912, 2008 Ga. LEXIS 520 (Ga. 2008) (decided under former Code Section31-36-6).


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