HEALTH CARE DIRECTIVES

INDIANA HEALTH CARE DIRECTIVES

Why should you consider a health care directive? Because, for many folks, these documents may become to most important document(s) in your Estate Planning tool kit. In the realm of advanced directives, there are a number of laws that may compete with each other. So here is a brief description of each.

APPOINTMENT OF A HEALTH CARE REPRESENTATIVE

Initially, we have to remember that these advanced directives trigger when a certain event, like incapacity occurs. If the patient is able to consent, they have autonomy and their health care representative isn’t going to be able to their health care treatment strings.

Indiana’s Health Care Consent Law provides the authority of patients, their appointees, or their spouses, relatives or other appointed individuals to make health care decisions on behalf of the patient, if the patient is unable to make their own decision.

WHO CAN CONSENT/MAKE HEALTH CARE DECISIONS?

The Patient: A patient can consent to their own health care if they are: (1) an adult or emancipated minor at least 14 years old who is not living with parents and takes care of their own needs; is married; or in the service.

The patient cannot make their own health care decision, if they have lost their mind. Okay, the law doesn’t say it that way. The law says that the patient cannot consent, if their physician says they are not capable of making the decision.

WHAT DOES A HEALTH CARE REPRESENTATIVE APPOINTMENT LOOK LIKE?

It’s a written document that conveys the specific authority to make health care decisions on behalf of the patient. The document needs to be witnessed by an adult who is not the named health care representative. Remember, the health care representative cannot consent to medical treatment on behalf of the patient if the patient is capable of making their own decision.

WHO CAN MAKE HEALTH CARE DECISIONS IF THERE IS NO HEALTH CARE REP APPOINTED?

Well, I’m glad you asked this question. Under the law, a list of family members (spouse, parent, adult child or adult sibling) can consent. Further, the local probate court can also appoint a health care representative if one is needed.

SAMPLE HEALTH CARE DIRECTIVE –

APPOINTMENT OF HEALTH CARE REPRESENTATIVE

I, (Name), hereby authorize and appoint (Name), (Address) (hereinafter called “Health Care Representative”) to act on my behalf pursuant to Indiana Code Section 16-36-1 with regard to questions of medical services, and to consent to, or withhold consent for, medical treatment, emergency or otherwise, if at any time I should be incapable of giving, or withholding, said consent an my own behalf.

EFFECTIVE ON INCAPACITY

This appointment of authority shall not become effective until such time as I become incapable of consenting to, or withholding consent for, medical treatment as determined by my regular physician, and shall last only so long as the incapacity continues. In the event that my physician is unavailable or if consultation would be unadvisable due to the existence of some emergency then the attending physician shall determine the extent to which I am capable of making decisions with regard to my medical treatment.

WITHHOLDING OR WITHDRAWAL OF HEALTH CARE

I authorize my Health Care Representative to make decisions in my best interest concerning withdrawal or withholding of health care. If, at any time, based on my previously expressed preferences and the diagnosis and prognosis, my Health Care Representative is satisfied that certain health care is not or would not be beneficial, or that such health care is or would be excessively burdensome, then my Health Care Representative may express my will that such health care be withheld or withdrawn and may consent on my behalf that any or all health care be discontinued or not instituted, even if death may result.

My Health Care Representative must try to discuss this decision with me. However, if I am unable to communicate, my Health Care Representative may make such a decision for me, after consultation with my physician or physicians and other relevant health care givers. To the extent appropriate, my Health Care Representative may also discuss. this decision with my family and others, to the extent they are available. In making this decision, I request that my Health Care Representative and family consider the following:

  • My diagnosis and prognosis;
  • The risks, benefits and burdens to me of treatment;
  • The emotional burdens on my family;
  • The financial burden on my family;
  • My statements of preference regarding health care as expressed in this document;
  • Other statements regarding health care 1 have made, giving weight to my most recent statements; and
  • My ethical and religious principles.

COORDINATION WITH POWER OF ATTORNEY

I give my Health Care Representative authority with respect to health care pursuant to Indiana Code 30-5-5-16 and request that my Health Care Representative work with my attorney-in-fact in exercising these powers.

DELEGATION

I further authorize my Health Care Representative to appoint a third party, in a signed and witnessed writing, to consent to, or withhold consent for, medical treatment on my behalf if my Health Care Representative cannot or Will not be available to exercise that authority during a period when I am incapable of consenting or withholding consent on my own behalf. Such delegation of authority shall not exceed the authority herein granted but may include such conditions as my Health Care Representative deems to be in my best interests. The third party so authorized to act on my behalf must satisfy all requirements of Indiana Code Section 16-36-1-6 for said grant of authority to be valid and effective.

By accepting this appointment of authority to consent to, or withhold consent for, medical treatment on my behalf, my Health Care Representative affirms and agrees to act solely in my best interests without regard to the cost to any other interested third party.

Dated this ___ day                                      Dated this _____ day of January 2020.                                                                                                                                                                                                 _____________________________(Signature)

We declare, that, at the request of the above-named individual making the appointment, we witnessed the signing of this document.

Dated this ____ day of January 2020.

________________________ (Signature Witness)           _______________________(Signature Witness)

DURABLE POWER OF ATTORNEY

A durable power of attorney can also confer the ability to make health care decisions on the attorney-in-fact. If the authority is conferred under a power of attorney, the attorney-in-fact can have greater powers than a health care representative under the law.  Also, an attorney-in-fact has the legal authority to actually sue a health care provider to force the provider to follow the decisions of the attorney-in-fact under the POA.