Hawaii Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   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.

2. 2

   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)).

3. 3

   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.

4. 4

   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)).

5. 5

   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.

6. 6

   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.

7. 7

   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.

8. 8

   This is a different document from Hawaii's Durable Power of Attorney, which covers property and financial decisions, not health care.

Hawaii Requirements for Healthcare Power of Attorney

• Statutory Authority (Hawaii Revised Statutes § 327E)

  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.

• Agent Designation (Hawaii Revised Statutes § 327E-3)

  The document must clearly designate a primary agent, and optionally alternate agents, who will make health care decisions when the principal becomes incapacitated.

• Agent Authority Scope (Hawaii Revised Statutes § 327E-3(b))

  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)).

• Effective Date and Durability (Hawaii Revised Statutes § 327E-3(b), (e), (f))

  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.

• Determination of Incapacity (Hawaii Revised Statutes § 327E-3(f))

  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.

• HIPAA Authorization (45 CFR § 164.508)

  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.

• Revocation Provisions (Hawaii Revised Statutes § 327E-4)

  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.

• Witness Requirements (Hawaii Revised Statutes § 327E-3)

  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 Requirement (Hawaii Revised Statutes § 327E-3)

  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)).

• Agent Qualifications (Hawaii Revised Statutes § 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)).

• Agent Responsibilities (Hawaii Revised Statutes § 327E-3(g))

  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)).

• Healthcare Facility Obligations (Hawaii Revised Statutes § 327E-7)

  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).

• Anatomical Gifts Authorization (Hawaii Revised Statutes § 327-4)

  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).

• Mental Health Treatment Decisions (Hawaii Revised Statutes Chapter 327G)

  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.

• Out-of-State Recognition (Hawaii Revised Statutes § 327E-3(j))

  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)).

• Medicare/Medicaid Compliance (42 CFR § 489.102)

  The document must comply with federal Medicare and Medicaid requirements regarding advance directives for patients receiving services under these programs.

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

  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)).

• Liability Protection (Hawaii Revised Statutes § 327E-9)

  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).