Computer screenshot of 2021 Senate  Enrolled Act 204, which  authorized the creation of health care advance directives

Indiana General Assembly gave us health care advance directives in 2021 legislation that was the first overhaul of Indiana’s health care consent laws in over 28 years. This article reviews some of the health care consent law’s features.

One Advance Directive For All Health Care Decisions

The Advance Directive law offers simplicity and flexibility in one document to replace:

  • durable powers of attorney for health care (Health Care POAs);
  • appointments of health care representatives (HCR Appointments); and
  • living will declarations (Living Wills).

The law preserved the validity of Health Care POAs, HCR Appointments, and Living Wills signed before January 1, 2023. However, any phased-out documents signed after December 31, 2022, are ineffective.

What’s Its Name?

The new health care consent document is called an “advance directive.” That name is not descriptive, so many estate planning lawyers call it a “health care advance directive.”

Standardized Signing Options

Each kind of health care consent document had a different signature rule under the old laws:

  • a Health Care POA had to be notarized;
  • an HCR Appointment had to be signed in the presence of one witness; and
  • a Living Will had to be signed in the presence of two witnesses.

The new law offers two options for signing an advance directive for health care:

  1. signed in the presence of two witnesses; OR
  2. signed in the presence of a notary public.

Remote Signing – Pandemic Lessons Learned

The law also addressed isolation problems in “locked down” health care facilities. The old law assumed people would sign paper forms in the physical presence of witnesses or notaries. As many readers remember too well, health facilities restricted visitor access until patients received vaccines.

The 2021 advance directives law permits isolated people to sign advance directives remotely. A notary public must use one of the complex video conference systems that verify people’s identities by quizzing them about old addresses, phone numbers, and other information. However, witnesses can participate through common video conferencing systems like Zoom, Slack, Google Meet, Facebook Live, and Skype.

More advance directive information is available online at the Indiana Health Care Quality Resource Center’s website.

About the Authors

Jeff and Jennifer are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers. They are also active members of the Indiana State Bar Association and the Indiana Chapter of the National Academy of Elder Law Attorneys (NAELA). Jeff is also a member of the Illinois NAELA Chapter.

Both Hawkins are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois.

Jeff is a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation. He is also a member of the Illinois State Bar Association and served as the 2014-15 President of the Indiana State Bar Association.

More Information

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