Gradual Recognition

You notice your mom is forgetting things and begin to worry about her health. She recognizes that her memory loss is affecting her life and agrees to see a neurologist. Together, you hear the devastating news that your mom has early-onset Alzheimer’s. She realizes it too.

The doctor recommends taking precautions regarding your mom’s ability to make future decisions regarding health care and finances. For this purpose, you contemplate whether to become a health care representative for your mom or an attorney-in-fact with broader responsibilities.

Sudden Need

You never think it could happen to you, but suddenly you’re driving around carefree when another car crashes into your vehicle. You have minor injuries, but your brother flies through the windshield and ends up in a coma.

You know your brother does not want to be kept alive artificially, but the doctors cannot follow those wishes because your brother never appointed a health care representative.

Appointment Of Health Care Representative

Need For Appointment Of A Health Care Representative

A health care representative represents a person’s health care interests when the person (the “principal”) is unable to communicate health care decisions or lacks adequate mental capacity to make health care decisions.

If there is no appointed health care representative for health care decisions, state medical consent laws determine who makes the decisions.

Appointment Of A Health Care Representative

You don’t need a specific form to appoint a health care representative in Indiana. To be valid, your selection must simply be in writing, signed by you, and witnessed by two adults other than the health care representative.

That doesn’t mean that an appointment of health care representative can’t be sophisticated. Written appointments can be adjusted to meet the needs or preferences of the appointing person (“principal”). An appointment of health care representative can specify terms, conditions, and contingencies, including directions for how to deal with certain end-of-life decisions and authorization for the representative to delegate the authority to make health care decisions to another individual. 

The COVID 19 pandemic created circumstances when people could not be present to make critically ill family members’ health decisions.  An appointment of health care representative that authorizes the representative to appoint a delegate enables health care representatives to enlist help from delegates in those cases.

Duties Of Health Care Representative

The appointment as a health care representative becomes effective the moment the principal becomes incapable of consenting to health care measures. The authority to act includes all matters of health care.

A health care representative should try to discuss health care decisions with the patient and follow the patient’s wishes. However, if the patient cannot communicate or the doctor determines that the patient lacks adequate mental ability to understand health care decisions, the health care representative may act on the patient’s behalf.

A health care representative must act in the best interest of the principal, according to the principal’s wishes expressed in the appointment or otherwise communicated by the principal to the health care representative.

Decisions A Health Care Representative Can Make

A health care representative can make a wide range of health care decisions, including the treatments or medicines the principal should receive and whether to admit or discharge the principal from a hospital.

A principal should discuss the principal’s views on health care decisions with the health care representative and confirm that the health care representative is willing and able to communicate the principal’s views during a health crisis. The principal’s discussion with the health care representative should include the principal’s feelings about things like:

  • when the principal would want to receive or avoid artificial resuscitation and life support;
  • artificial nutrition (food) and hydration (water) if the principal is permanently incapacitated in an institutional care setting;
  • being an organ donor;
  • burial, cremation, or other treatment of the principal’s body after death.

Power Of Attorney

What Is A Power Of Attorney?

A power of attorney is a document by which a principal authorizes someone (the “attorney-in-fact” (preferred term in Indiana) or “agent” (preferred term in Illinois) to make legal and financial decisions and act on the principal’s behalf. By appointing an attorney-in-fact, a principal enables another person to act on the principal’s behalf in legal and financial matters.

A power of attorney can be effective immediately or become effective when the principal becomes incapacitated (called a “springing” power of attorney). Although a principal shares authority by appointing an attorney-in-fact, the principal does not surrender authority to the attorney-in-fact.

A power of attorney may include limited powers for a specific situation (a limited power of attorney) or general powers to cover countless unforeseeable situations (a general power of attorney). The Social Security Administration and some other government agencies do not rely on powers of attorney, so an attorney-in-fact cannot always represent the principal in every circumstance. Also, an attorney-in-fact cannot update the principal’s last will and testament. Although an attorney-in-fact of an Indiana resident can make transfer on death deeds and other transfer on death and pay on death instruments, Illinois legislation proposed for 2021 would prohibit an attorney-in-fact from making those instruments for an Illinois principal.

Most modern powers of attorney are “durable,” which means the attorney-in-fact’s authority remains effective after the principal becomes incapacitated. By contrast, an attorney-in-fact’s authority terminates under a non-durable power of attorney when the principal becomes incapacitated.

Most powers of attorney are revocable. So, a principal may decide the attorney-in-fact is a poor choice and terminate the power of attorney. Generally, the attorney-in-fact is not liable for actions made after the principal terminates the power of attorney unless the attorney-in-fact receives notice of the termination.

A power of attorney may appoint one or more people to serve simultaneously as the attorney-in-fact. The power of attorney may also appoint one or more layers of successor attorneys-in-fact to serve if their predecessors are unwilling or unable to serve.

Need For a Power Of Attorney

Protections of individual liberties in the United States Constitution and the various states’ constitutions prevent government officials or individuals from interfering with a person’s business without due process of law. While we all cherish our constitutional rights, those rights create roadblocks for people who become incapacitated before appointing attorneys-in-fact. If an incapacitated person has not made a power of attorney to appoint an attorney-in-fact for personal and business decisions, the person’s family or friends may have to petition a court to appoint a court-supervised guardian.

What Is An Attorney-In-Fact?

The term, “attorney-in-fact,“ is not the same as an “attorney at law.” The distinctions between an attorney-in-fact and an attorney at law include their roles and the requirements for them to fill the roles. A principal appoints an attorney-in-fact, who does not have to have any particular skills or licenses. By contrast, the state supreme court licenses a law school graduate to advise clients about the law and represent them in legal matters as an attorney at law after the graduate passes a character and fitness review and a bar exam. Other terms for an attorney at law include “lawyer,” “counselor at law,” “attorney,” and “legal counsel.”

Appointing An Attorney-In-Fact

Appointing an attorney-in-fact is like appointing a health care representative in the sense that a principal appoints someone to make future decisions. However, a power of attorney empowers an attorney-in-fact to act in almost every kind of decision other than health care.

State legislatures in Illinois and some other states have established standard power of attorney forms by statutes. Other states, like Indiana, have established a standard list of powers that lawyers can use to help principals make custom-designed powers of attorney.

To make a power of attorney in Indiana or Illinois, a principal must sign the power of attorney in the presence of a notary public, who must then “notarize” the principal’s signature. A new law taking effect in Indiana on July 1, 2021 also permits a principal to make a power of attorney by signing it in the presence of two adult witnesses.

Distinctions Of A Health Care Representative From An Attorney-In-Fact

The roles of a health care representative and an attorney-in-fact are very different. A health care representative most know the principal’s wishes about health care and be capable of making difficult and emotionally demanding health care decisions. An attorney-in-fact must make prudent financial decisions and keep detailed records of all the attorney-in-fact’s decisions and actions.

Although some people can serve in both kinds of roles, a principal should only appoint people for responsibilities that the appointees can manage effectively. So, a principal should not appoint an indecisive person to serve as the principal’s health care representative, and a person who can’t balance a checkbook should not be an attorney-in-fact. However, if a principal wants to appoint one person to serve as health care representative and attorney-in-fact, the principal should make those appointments by separate appointment of health care representative and power of attorney documents.

Duties Of Attorney-In-Fact

An attorney-in-fact must act in the principal’s best interests. An attorney-in-fact should remember that the principal can revoke a power of attorney at any time if the principal is not incapacitated. Also, because the principal does not surrender authority by appointing the attorney-in-fact, the attorney-in-fact should not try to act against the principal’s wishes. So, if the attorney-in-fact thinks the principal needs nursing home care, the attorney-in-fact should not try to force the principal to move to a nursing home over the principal’s objections.

Most powers of attorney nominate guardians. If an attorney-in-fact believes the principal is incapacitated, the attorney-in-fact should consult the principal’s physician about the principal’s health status. If the physician confirms that the principal is incapacitated, the attorney-in-fact should consider petitioning the probate court for appointment of a guardian when an incapacitated principal refuses to receive necessary health care.

The attorney-in-fact must keep complete records of all the attorney-in-fact’s actions and decisions on the principal’s behalf. The attorney-in-fact should assume that the principal or a family member will demand a detailed report of the attorney-in-fact’s actions and decisions during the principal’s lifetime or after the principal’s death. In some cases, if the attorney-in-fact does not deliver a detailed account of the attorney-in-fact’s actions, a court can order the attorney-in-fact to deliver the report and pay a demanding party’s attorney fees.

The COVID 19 pandemic made legislators and lawyers rethink how sick and injured people appoint health care representatives and attorneys-in-fact to make critical health and business decisions. The attorneys of Hawkins Elder Law worked with colleagues of the Indiana State Bar Association to help rewrite Indiana laws to make it easier for patients in hospitals and nursing homes to appoint health care representatives and attorneys-in-fact.

About the Authors

Jeff R. Hawkins and Jennifer J. Hawkins co-author this blog with Thomas E. Hynes, a lawyer admitted to practice in Pennsylvania, New Jersey and Florida who has a background in estate planning and elder law. 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 he served as the 2014-15 President of the Indiana State Bar Association.

More Information

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