Alabama Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   Alabama's Health Care Proxy, created inside your Advance Directive for Health Care under Code of Alabama Section 22-8A-4, cannot decide anything for you the moment you simply become unable to communicate. Your named proxy only gains authority to decide whether you receive, refuse, or stop life-sustaining treatment and artificially provided nutrition and hydration once two physicians examine you and certify, in writing, that you have a terminal illness or injury or are permanently unconscious.

2. 2

   Your proxy's authority does not begin the moment you sign. It begins only after your attending physician and a second qualified physician personally examine you and document that you have a terminal illness or injury or are permanently unconscious (Code of Alabama Section 22-8A-4(d)).

3. 3

   Unless you give different instructions in the document, your proxy is limited to life-sustaining-treatment and artificial nutrition and hydration decisions. It is not automatically given authority over your everyday medical care.

4. 4

   Your proxy can never be your health care provider, and cannot be a nonrelative employee of your health care provider (Section 22-8A-4(b)(4)).

5. 5

   You need two witnesses, each at least 19 years old, and both witnesses, not just one, must meet the full list of disqualifications, such as not being your proxy or a relative of yours. Alabama does not require or offer notarization as a substitute.

6. 6

   If you are known to be pregnant, this document has no effect until your pregnancy ends, no matter what it says (Section 22-8A-4(e)).

7. 7

   You can revoke the document at any time by destroying it, signing a later written revocation, or telling a witness who writes down and signs your spoken revocation (Section 22-8A-5).

8. 8

   If you name your spouse as proxy and later divorce, their authority ends automatically unless your document says otherwise.

9. 9

   Alabama has no central state registry for Advance Directives for Health Care. Keep the signed original and give copies to your physician, your proxy, and any alternate proxy.

10. 10

    This is a different document from Alabama's Durable Power of Attorney, which is used for property and financial decisions and only reaches health care decisions if it specifically adds that authority.

Alabama Requirements for Healthcare Power of Attorney

• Statutory Authority (Code of Alabama Section 22-8A-1 et seq.)

  The Health Care Proxy is created as part of the Advance Directive for Health Care, governed specifically by Code of Alabama Section 22-8A-4, within Chapter 8A (the Natural Death Act, Sections 22-8A-1 through 22-8A-13).

• Capacity of Declarant (Code of Alabama Sections 22-8A-3(1), (6), 22-8A-4(a))

  The declarant must be a competent adult, defined as alert, capable of understanding a lay description of medical procedures, and able to appreciate the consequences of providing, withholding, or withdrawing them, and at least 19 years old.

• Health Care Proxy Qualifications (Code of Alabama Section 22-8A-4(b)(4))

  The health care proxy must be a competent adult (19 or older). The proxy can never be the declarant's health care provider, with no relative exception for the provider itself; a proxy who is instead merely an employee of the health care provider is barred only if not the declarant's relative.

• Witness Requirements (Code of Alabama Section 22-8A-4(c))

  The declarant signs, or directs another to sign in the declarant's presence, in front of two witnesses at least 19 years old, who then sign the document. Both witnesses, not just one, must also clear a full disqualification list: neither may be the person who signed for the declarant, the named health care proxy, related to the declarant by blood, adoption, or marriage, entitled to any part of the declarant's estate, or directly financially responsible for the declarant's medical care.

• Scope of Proxy Authority (Code of Alabama Sections 22-8A-3(9), 22-8A-4(b), 22-8A-6)

  Alabama's health care proxy authority is limited by statute to deciding whether to provide, withhold, or withdraw life-sustaining treatment and artificially provided nutrition and hydration; it is not automatically a general grant of authority over all medical treatments and procedures. Broader, everyday health care decision authority requires a separate durable power of attorney health care rider under Code of Alabama Section 26-1-2(g), which itself excludes psychosurgery, sterilization, abortion except to preserve the declarant's life, and involuntary hospitalization or treatment.

• Activation Conditions (Code of Alabama Section 22-8A-4(d))

  The proxy's authority activates only when the attending physician determines the declarant can no longer understand, appreciate, and direct medical treatment, AND two physicians, one being the attending physician and one qualified and experienced in making the diagnosis, personally examine the declarant and document either a terminal illness or injury or a state of permanent unconsciousness.

• Alternate Proxy Designation (Code of Alabama Section 22-8A-4(h))

  The statutory form provides fields for a first and second choice of health care proxy, so the declarant may name an alternate who serves if the first choice is unable, unwilling, or unavailable.

• Revocation Provisions (Code of Alabama Section 22-8A-5)

  The declarant may revoke at any time by destroying or defacing the document with intent to cancel, by a signed and dated written revocation, or by a verbal expression of intent to revoke made in the presence of a witness at least 19 years old who signs and dates a writing confirming the statement (effective once the health care provider receives that writing).

• Pregnancy Provisions (Code of Alabama Section 22-8A-4(e))

  Alabama law automatically suspends the entire advance directive for health care, including any proxy designation, during the course of a pregnancy the attending physician knows about, regardless of what the document itself says.

• Anatomical Gift Authorization (Code of Alabama Title 22, Chapter 19, Article 9, Revised Uniform Anatomical Gift Act)

  Alabama has adopted the Revised Uniform Anatomical Gift Act, which defines an 'agent' to include a person authorized to make health care decisions for the principal under a power of attorney for health care, and permits that agent to make an anatomical gift on the principal's behalf unless the health care directive expressly prohibits it.

• Mental Health Treatment Decisions

  Alabama's Health Care Proxy under Chapter 22-8A does not extend to general mental health treatment decisions at all; its authority is limited to life-sustaining treatment and artificial nutrition and hydration decisions Broader authority, if desired, requires a separate durable power of attorney health care rider under Code of Alabama Section 26-1-2(g), which itself explicitly excludes 'involuntary hospitalization or treatment covered by Subtitle 2 of Title 22' and psychosurgery.

• Immunity for Good-Faith Reliance (Code of Alabama Section 22-8A-7(c))

  A physician, licensed health care professional, medical care facility, or other health care provider who in good faith and pursuant to reasonable medical standards follows a living will, a designated proxy's directions, or a duly appointed surrogate's directions, without actual knowledge of a revocation, is not subject to criminal or civil liability and is not found to have committed unprofessional conduct.

• Relationship to Living Will (Code of Alabama Section 22-8A-4(g))

  Where a declarant has executed both a living will and a proxy designation, the health care proxy's decisions regarding life-sustaining treatment and artificially provided nutrition and hydration take precedence over the living will, unless the declarant's living will or proxy designation states otherwise. In Alabama, the living will and the health care proxy designation are typically executed as sections of the same combined statutory form, not as two separate documents.

• Notarization Not Required

  Alabama law requires only two qualifying witnesses under Code of Alabama Section 22-8A-4(c); it does not require or offer notarization as an alternative. The official ADPH form has a two-witness signature block and no notary block.

• HIPAA Authorization (45 CFR Section 164.508)

  Federal HIPAA regulations govern how the health care proxy can be authorized to access the declarant's protected health information once the document is in effect.

• Out-of-State Recognition (Code of Alabama Section 22-8A-12)

  An advance health care directive executed in another state in compliance with that state's law, or with Alabama's law, is valid for purposes of Chapter 22-8A, though this does not authorize administering, withholding, or withdrawing health care otherwise prohibited under Alabama law.

• Patient Self-Determination Act Compliance (42 U.S.C. Section 1395cc(f))

  Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including an Advance Directive for Health Care with a health care proxy designation.

• Consideration of Religious and Philosophical Beliefs (Code of Alabama Section 22-8A-6)

  Where the declarant has not given specific instructions, the health care proxy must make decisions that conform as closely as possible to what the declarant would have wanted, taking into account the declarant's personal, philosophical, religious, and moral beliefs and ethical values.