§ 29-4-18 - Definitions; requirements; termination of temporary medical consent guardianship - Georgia Statutes

O.C.G.A. 29-4-18 (2010)
29-4-18. Definitions; requirements; termination of temporary medical consent guardianship

(a) As used in this Code section, the term:

(1) "Adult unable to consent" means a person 18 years of age or older who has been determined in his or her medical records by a licensed physician after the physician has personally examined the adult that he or she lacks sufficient understanding or capacity to make significant responsible decisions regarding his or her medical treatment or the ability to communicate by any means such decisions.

(2) "Life-sustaining procedures" means medications, machines, or other medical procedures or interventions which, when applied to a medical consent ward in a terminal condition or in a state of permanent unconsciousness, could in reasonable medical judgment keep such medical consent ward alive but cannot cure the medical consent ward and where, in the judgment of the medical consent ward's primary treating physician and a second physician, death will occur without such procedures or interventions.

(3) "Medical consent ward" means a ward for whom the court has appointed a temporary medical consent guardian pursuant to this Code section for a limited time and only for the purposes of consenting to surgical or medical treatment or procedures not prohibited by law.

(4) "Proposed medical consent ward" means an adult unable to consent who is or has been a patient in a health care institution or of a health care provider.

(5) "State of permanent unconsciousness" means an incurable or irreversible condition in which the medical consent ward is not aware of himself or herself or his or her environment and in which such medical consent ward is showing no behavioral response to his or her environment.

(6) "Temporary medical consent guardian" means an individual appointed pursuant to the provisions of this Code section for a limited time and only for the purposes of consenting to surgical or medical treatment or procedures not prohibited by law.

(7) "Terminal condition" means an incurable or irreversible condition which would result in the medical consent ward's death in a relatively short period of time.

(b) In the absence, after reasonable inquiry, of a person authorized or willing to consent for the proposed medical consent ward under the provisions of Code Section 31-9-2, any interested person, including the proposed medical consent ward, may file a petition for the appointment of a temporary medical consent guardian. The petition shall be filed in the court of the county in which the proposed medical consent ward is domiciled or is found.

(c) The petition for appointment of a temporary medical consent guardian shall set forth:

(1) A statement of the facts upon which the court's jurisdiction is based;

(2) The name, address, and county of domicile of the proposed medical consent ward, if known;

(3) The name, address, and county of domicile of the petitioner and the petitioner's relationship to the proposed medical consent ward;

(4) A statement of the reasons the temporary medical consent guardian is sought, including:

(A) Facts that support the need for such guardian including facts that establish what medical decisions are needed and why those decisions are needed without undue delay;

(B) Facts that support the determination that the proposed medical consent ward lacks sufficient capacity to make or communicate medical treatment decisions; and

(C) The anticipated duration of the temporary medical consent guardianship;

(5) The fact that no other person appears to have authority and willingness to act in the circumstances, whether under a power of attorney, trust, or otherwise;

(6) The reason for any omission in the petition for an appointment of a temporary medical consent guardian in the event full particulars are lacking; and

(7) Whether a petition for the appointment of a guardian or conservator has been filed or is being filed in conjunction with the petition for the appointment of the temporary medical consent guardian.

(d) Upon the filing of a petition for a temporary medical consent guardian, the court shall review the petition to determine whether there is probable cause to believe that the proposed medical consent ward lacks decision-making capacity and is in need of a temporary medical consent guardian and either:

(1) Dismiss the petition and provide the proposed medical consent ward with the order dismissing the petition; or

(2) If the court determines that there is probable cause to believe that the proposed medical consent ward is in need of a temporary medical consent guardian, immediately:

(A) Appoint legal counsel to represent the proposed medical consent ward, which counsel may be the same counsel who is appointed to represent such adult in the hearing on the petition for guardianship, if any such petition has been filed, and the court shall inform counsel of the appointment;

(B) Order a preliminary hearing to be conducted within 72 hours after the filing of the petition; and

(C) Notify any proposed medical consent ward of any proceedings by service of all pleadings on such proposed medical consent ward, which notice shall be served personally on the proposed medical consent ward by a person specially appointed by the court for such purpose and shall not be served by mail, and such notice shall inform the proposed medical consent ward:

(i) That he or she has the right to attend any hearing that is held in connection with the petition to appoint a temporary medical consent guardian;

(ii) That he or she may lose important rights to control the management of his or her person if a temporary medical consent guardian is appointed;

(iii) That legal counsel has been appointed on his or her behalf; and

(iv) The date and time of the preliminary hearing on the petition to appoint a temporary medical consent guardian.

(e) Unless waived by the court, notice of the petition and the preliminary hearing shall also be served on the following persons who have not joined in the petition or otherwise consented to the proceedings:

(1) The administrator of the hospital or other health care facility where the proposed medical consent ward is located;

(2) The primary treating physician and other physicians believed to have provided any medical opinion or advice about any condition of the proposed medical consent ward relevant to the petition;

(3) All other persons the petitioner believes may have information concerning the expressed wishes of the proposed medical consent ward; and

(4) Any other persons as the court may direct.

(f) At the preliminary hearing, the court, in its discretion, shall:

(1) Appoint a temporary medical consent guardian;

(2) Order an evidentiary hearing to be conducted not later than four days after the preliminary hearing; or

(3) Dismiss the petition and provide the proposed medical consent ward with the order dismissing the petition.

(g) If the court orders an evidentiary hearing, in addition to any other evidence presented to the court, the court may consider any case review by the hospital's or health care facility's ethics committee or subcommittee thereof or by any other ethics mechanism selected by the hospital or health care facility.

(h) If the court holds an evidentiary hearing, the court, in its discretion, shall either:

(1) Appoint a temporary medical consent guardian; or

(2) Dismiss the petition and provide the proposed medical consent ward with the order dismissing the petition.

(i) The court shall have the authority to appoint as a temporary medical consent guardian any individual the court deems fit with consideration given to any applicable conflict of interest issue so as long as such individual is: (1) willing and able to become involved in the proposed medical consent ward's health care decisions and (2) willing to exercise reasonable care, diligence, and prudence and to consent in good faith to medical or surgical treatment or procedures which the proposed medical consent ward would have wanted had he or she not been incapacitated. Where the proposed medical consent ward's preferences are not known, the temporary medical consent guardian shall agree to act in the proposed medical consent ward's best interests. However, a temporary medical consent guardian shall not be authorized to withdraw life-sustaining procedures unless specifically authorized by the court pursuant to this Code section.

(j) The temporary medical consent guardianship shall terminate on the earliest of:

(1) The court's removal of the temporary medical consent guardian;

(2) The effective date of the appointment of a permanent guardian under Code Section 29-4-2;

(3) The duration of the current hospitalization of the medical consent ward or a substantially continuous stay in another health care facility; or

(4) Sixty days from the date of appointment of the temporary medical consent guardian.

(k) (1) No hospital or other health care facility, health care provider, or other person or entity shall be subject to civil or criminal liability or discipline for unprofessional conduct solely for relying in good faith on any direction or decision by a temporary medical consent guardian, even if death or injury to the medical consent ward ensues. Each hospital or other health care facility, health care provider, and any other person or entity who acts in good faith reliance on any direction or decision by a temporary medical consent guardian shall be protected and released to the same extent as though such person had interacted directly with the medical consent ward as a fully competent person.

(2) No temporary medical consent guardian who, in good faith, acts with due care for the benefit of the medical consent ward, or who fails to act, shall be subject to civil or criminal liability for such action or inaction.

(l) The Department of Community Health shall develop and make available a Physician Order for Life-sustaining Treatment, a specific form voluntarily executed by a patient and his or her authorized representative and a physician which provides directions regarding end of life care.