Indiana Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   Unlike most states, Indiana lets this document take effect the moment you sign it: your Advance Directive appoints a trusted adult as your health care representative to make health care decisions for you, and whether that authority starts immediately or waits for your incapacity is a choice you make in the document, not something Indiana law decides for you.

2. 2

   Indiana does not call this document a power of attorney. Since a 2021 law change, health care powers granted through a general Indiana power of attorney signed after December 31, 2022 are void (Indiana Code Section 30-5-5-16(e)).

3. 3

   You choose in the document whether your representative's authority begins immediately when you sign or only once your incapacity is determined and noted in your medical records; most people choose the incapacity triggered option.

4. 4

   Indiana law does not automatically bar your treating physician, another health care provider, or a facility employee from serving as your representative. If you want to exclude someone, you must name them in the document yourself (Indiana Code Section 16-36-7-28(a)).

5. 5

   You can sign in front of two adult witnesses, at least one of whom cannot be your spouse or another relative, or you can sign before a notary instead. You do not need both.

6. 6

   You can revoke the document at any time by signing a later advance directive, signing a written revocation, or, while you are not incapacitated, telling a health care provider in person that you are revoking it.

7. 7

   Indiana has no state registry for advance directives and no single mandatory state form. Keep the signed original and give copies to your physician, your representative, and any successor representatives.

8. 8

   This is a different document from Indiana's Durable (Financial) Power of Attorney, which covers money and property and, since 2022, cannot lawfully include health care powers at all.

Indiana Requirements for Healthcare Power of Attorney

• Appointment of Health Care Representative (Indiana Code Section 16-36-7-13)

  The declarant designates a trusted adult as health care representative to make health care decisions when the declarant cannot communicate or decide, identified by full name and contact information. Since Senate Enrolled Act 204 (2021), this appointment is made within an advance directive under Indiana Code Title 16, Article 36, Chapter 7, not the older Indiana Code Section 16-36-1-7 appointment mechanism, which remains codified but is superseded for documents executed today.

• Successor Health Care Representative (Indiana Code Section 16-36-7-29)

  An advance directive may name one or more successor health care representatives to act if the primary representative is unwilling, unable, or unavailable, and may state whether multiple representatives act individually, jointly, or by majority vote.

• Authority Granted to Health Care Representative (Indiana Code Section 16-36-7-36)

  Except to the extent the declarant limits it, the health care representative has authority to make health care decisions for the declarant, subject always to the declarant's own right to act personally while competent.

• HIPAA Authorization (45 CFR Section 164.508)

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

• Effective Date of Representative's Authority (Indiana Code Section 16-36-7-34)

  Unless the document states otherwise, it takes effect immediately upon signing. Indiana law separately lets the declarant elect to make the representative's decision making authority effective only once the declarant's incapacity is determined and noted in the medical record, ending automatically if capacity is regained.

• Determination of Incapacity (Indiana Code Section 16-36-7-34)

  When the declarant elects to make the representative's authority effective only during incapacity, that incapacity must be determined and noted in the declarant's medical records before the representative may act, and the authority ends automatically if the declarant regains capacity.

• Life Sustaining Treatment Preferences (Indiana Code Section 16-36-7-34)

  An advance directive may state the declarant's preferences regarding life prolonging procedures and life sustaining treatment as part of the same document that appoints a health care representative.

• Organ and Tissue Donation (Indiana Code Section 29-2-16.1, Revised Uniform Anatomical Gift Act)

  The health care representative may make an anatomical gift on the declarant's behalf under Indiana's Revised Uniform Anatomical Gift Act, consistent with the declarant's known wishes, unless the declarant's advance directive or another signed record expressly prohibits it.

• Revocation of Advance Directive (Indiana Code Section 16-36-7-32)

  The declarant may revoke the advance directive at any time by signing a later advance directive, signing a written revocation, or, while not incapacitated, orally telling a health care provider, in that provider's presence, that the directive is revoked in whole or in part. A representative's actions remain valid until the representative or a provider has actual knowledge of a valid revocation.

• Witness Requirements (Indiana Code Section 16-36-7-28)

  Current Indiana law requires signing in the presence of two adult witnesses, at least one of whom may not be the declarant's spouse or another relative, or signing before a notary instead.

• Notary Acknowledgment Option (Indiana Code Section 16-36-7-28)

  Notarization is not merely recommended. It is one of two equally valid ways to execute an Indiana advance directive: sign and acknowledge the signature before a notarial officer, with no witnesses required, or sign in front of two adult witnesses instead.

• Out of State Recognition (Indiana Code Section 16-36-7-28)

  An advance directive signed by a declarant who was located in another state or jurisdiction at the time of signing is treated as validly executed under Indiana law if the declarant was not incapacitated and the document complied with either Indiana's own signing requirements or the law of the jurisdiction where the declarant was located.

• Religious and Personal Preferences (Indiana Code Section 16-36-7-36)

  A health care representative must act consistent with the declarant's known wishes, which may include religious and personal beliefs stated in the advance directive.

• Reliance and Immunity Provisions (Indiana Code Section 16-36-1-10)

  A health care provider who acts or declines to act in good faith reliance on the consent or refusal of an individual the provider believes is authorized to consent to health care is protected from criminal prosecution, civil liability, and professional disciplinary action on the ground that the consenting individual lacked authority or capacity.

• Court Petition When No Representative Is Available (Indiana Code Section 16-36-1-8)

  Indiana law lets a health care provider or interested individual petition the probate court to make a health care decision or appoint a representative when the declarant is incapable of consenting and no authorized decision maker is reasonably available, willing, or acting in the declarant's best interest.

• 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 a health care representative appointment.