Hawaii Healthcare Power of Attorney Requirements
Hawaii is one of the few states that lets you elect, on the state's own optional form, to make your agent's authority begin the moment you sign instead of waiting for a doctor's incapacity determination, which is why the form calls that section Durable Power of Attorney for Health-Care Decisions.
Introduction
Hawaii is one of the few states that lets you elect, on the state's own optional form, to make your agent's authority begin the moment you sign instead of waiting for a doctor's incapacity determination, which is why the form calls that section Durable Power of Attorney for Health-Care Decisions. This document, usually called a Hawaii Power of Attorney for Health Care, lets you name someone you trust, your agent, to make health care decisions for you if you are ever unable to make them yourself. Hawaii created this document as part of its Uniform Health-Care Decisions Act (Modified), Hawaii Revised Statutes Chapter 327E, which also lets you combine it with written instructions about your own care into one combined document called an Advance Health-Care Directive. This is a distinct kind of authority from a financial power of attorney, one confined to health care decisions, and says nothing about your money, property, or bills. By default, signing it does not hand your agent immediate authority: your agent can only start making decisions once your primary physician determines that you are unable to make your own health care decisions, unless you have made the immediate-effect election described above. Hawaii gives you two ways to make the document legally valid: sign it in front of two qualified witnesses, or sign it before a notary public within the state. The Hawaii Department of Health's Executive Office on Aging, working with the nonprofit Kokua Mau, publishes the state's official form, and there is no state registry to file the document with. You keep the signed original yourself and hand out copies to your physician, your agent, and any alternate agents.
Key Things to Know
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Hawaii is one of the few states that lets you elect, on the document itself, to make your agent's authority begin immediately instead of only after a doctor determines you cannot decide for yourself; either way, a Power of Attorney for Health Care in Hawaii lets you name a trusted adult (the agent) to make health care decisions for you if you become unable to make them yourself.
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By default, your agent's authority does not start the moment you sign. It begins only after your primary physician determines that you are unable to make your own health care decisions (Hawaii Revised Statutes Section 327E-3(e), (f)).
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Unlike many states, Hawaii lets you elect on the document itself to make your agent's authority begin immediately instead of waiting for a determination of incapacity. The state's own optional statutory form labels this section Durable Power of Attorney for Health-Care Decisions.
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Unless your agent is related to you by blood, marriage, or adoption, your agent cannot be an owner, operator, or employee of the health care facility where you are receiving care (Section 327E-3(b)).
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You need two qualified witnesses, or a notary public acting within Hawaii. Neither witness may be your agent, a health care provider, or an employee of a health care provider or facility, and at least one of the two must also not be related to you or entitled to your estate.
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Revoking this document works differently depending on what you are revoking. Canceling your agent's designation requires a signed writing or personally informing your supervising health care provider. Revoking any other part, such as written instructions, can be done at any time, in any manner that shows your intent.
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Hawaii has no central state registry for this document. Keep the signed original and give copies to your physician, your agent, and any alternate agents.
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This is a different document from Hawaii's Durable Power of Attorney, which covers property and financial decisions, not health care.
Key decisions before you file
Before you file a Healthcare Power of Attorney in Hawaii, a few decisions shape the document: which option to choose and what each one means. The Healthcare Power of Attorney guide walks through them.
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Hawaii Requirements for Healthcare Power of Attorney
The Power of Attorney for Health Care must comply with Hawaii's Uniform Health-Care Decisions Act, which provides the legal framework for advance health care directives in the state.
The document must clearly designate a primary agent, and optionally alternate agents, who will make health care decisions when the principal becomes incapacitated.
The Power of Attorney for Health Care may authorize the agent to make any health care decision the principal could have made while having capacity, including decisions about medical treatments, procedures, and end of life care, except to the extent the principal limits that authority in the document (Hawaii Revised Statutes Section 327E-3(b)).
The document remains in effect notwithstanding the principal's later incapacity (Section 327E-3(b)). Unless the document specifies otherwise, the agent's authority becomes effective only upon a determination that the principal lacks capacity, and that determination is made by the principal's primary physician (Section 327E-3(e), (f)). Hawaii's own optional statutory form also lets the principal elect immediate effectiveness instead of waiting for the incapacity determination, so the document's effective date can be either the springing default or an immediate-effect election, depending on what the principal chooses.
Unless the document specifies otherwise, a determination that the principal lacks or has recovered capacity is made by the principal's primary physician (Hawaii Revised Statutes Section 327E-3(f)). Hawaii does not require a second physician to concur in this determination.
Federal HIPAA regulations govern how the designated agent can be authorized to access the principal's protected health information; the agent's general authority to make health care decisions includes the right to access those records needed to make them.
The principal may revoke the designation of an agent only by a signed writing or by personally informing the supervising health care provider (Hawaii Revised Statutes Section 327E-4(a)). Any other part of the directive, such as written instructions, may be revoked at any time and in any manner that communicates intent to revoke (Section 327E-4(b)), which is a looser standard than the one for revoking the agent's designation itself.
Neither witness may be a health care provider, an employee of a health care provider or facility, or the person named as agent (Hawaii Revised Statutes Section 327E-3(c)); that bar applies to both witnesses, not just one of them. On top of that, at least one of the two witnesses must also not be related to the principal by blood, marriage, or adoption, and must not be entitled to any portion of the principal's estate (Section 327E-3(d)).
Notarization is not an optional add-on to witnessing. It is one of two complete, independent ways to execute the document: the principal may either sign in front of two qualifying witnesses, or sign with the signature acknowledged before a notary public within the State of Hawaii, with no witnesses required in that case (Hawaii Revised Statutes Section 327E-3(b)).
Unless the agent is related to the principal by blood, marriage, or adoption, the agent may not be an owner, operator, or employee of the health care facility where the principal is receiving care (Hawaii Revised Statutes Section 327E-3(b)).
The agent must make health care decisions according to the principal's individual instructions and other wishes known to the agent, or, if those are unknown, according to the agent's determination of the principal's best interest, considering the principal's personal values to the extent known (Hawaii Revised Statutes Section 327E-3(g)).
Health care providers are legally obligated to comply with an agent's decisions as if made by the principal, with limited exceptions for conscience objections (Hawaii Revised Statutes § 327E-7).
Under Hawaii's Uniform Anatomical Gift Act, an agent under a power of attorney for health care may make an anatomical gift on the principal's behalf during the principal's life, unless the power of attorney for health care or another record prohibits the agent from doing so (Hawaii Revised Statutes Section 327-4).
A Hawaii Power of Attorney for Health Care under Chapter 327E does not, by itself, give the agent authority over mental health treatment decisions such as psychiatric medication or admission to a mental health facility. That authority instead comes from a separate Advance Mental Health Care Directive under Hawaii Revised Statutes Chapter 327G, which may be a standalone document or combined with the Chapter 327E directive.
An advance health care directive is valid in Hawaii if it complies with Chapter 327E, or if it was executed in compliance with the law of the state where it was executed (Hawaii Revised Statutes Section 327E-3(j)).
The document must comply with federal Medicare and Medicaid requirements regarding advance directives for patients receiving services under these programs.
Under the federal Patient Self-Determination Act, health care facilities must provide information about advance directives and respect the decisions made through them (42 U.S.C. § 1395cc(f)).
Hawaii law provides immunity from civil or criminal liability for health care providers and agents who act in good faith reliance on a power of attorney for health care (Hawaii Revised Statutes § 327E-9).
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Check my Healthcare Power of AttorneyFrequently Asked Questions
A Power of Attorney for Health Care in Hawaii is a legal document, created under Hawaii Revised Statutes Chapter 327E, the Uniform Health-Care Decisions Act (Modified), that lets you name a trusted adult, your agent, to make health care decisions for you if you are ever unable to make them yourself. It covers only health care decisions, such as consenting to or refusing treatment, and by default takes full effect only after your primary physician determines you are unable to decide for yourself.
A Power of Attorney for Health Care covers only health care decisions. Hawaii's Durable Power of Attorney, under Hawaii Revised Statutes Chapter 551E, covers property and financial matters instead, such as banking or real estate, and cannot authorize health care decisions. The two also default differently: a Hawaii Durable Power of Attorney is durable and effective immediately unless you state otherwise, while a Power of Attorney for Health Care defaults to taking effect only once your primary physician determines you are incapacitated, unless you specifically elect immediate effect on the document itself.
Not entirely. Hawaii law requires two witnesses, and neither one may be your named agent, a health care provider, or an employee of a health care provider or facility (Hawaii Revised Statutes Section 327E-3(c)). On top of that, at least one of the two must also not be related to you by blood, marriage, or adoption and must not be entitled to any part of your estate (Section 327E-3(d)). The second witness only needs to clear the first, shorter list.
Yes. Hawaii law lets you sign and have your signature acknowledged before a notary public instead of using witnesses, and no witnesses are required if you choose this option (Hawaii Revised Statutes Section 327E-3(b)). One Hawaii specific detail worth knowing: the statute's notary option is written for acknowledgment within the State of Hawaii, so confirm your notary is acting in Hawaii if you plan to rely on this path.
Generally no. Unless that person is related to you by blood, marriage, or adoption, your agent may not be an owner, operator, or employee of the health care facility where you are receiving care (Hawaii Revised Statutes Section 327E-3(b)). Your agent also cannot serve as one of your two witnesses.
No. Hawaii does not operate a central advance directive registry. You keep the signed original yourself and give copies to your physician, your agent, and any alternate agents so they have it when needed.
It depends on what you are revoking. You can revoke your agent's designation only by a signed writing or by personally informing your supervising health care provider. You can revoke any other part of the document, such as written instructions, at any time and in any manner that shows your intent to revoke (Hawaii Revised Statutes Section 327E-4(a), (b)).