Minnesota Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   Minnesota's Health Care Directive can actually serve two roles at once: it lets you name a trusted adult, the health care agent, to make health care decisions for you if you become unable to make them yourself, and it lets you write your own health care instructions directly into the same document instead of needing two separate forms.

2. 2

   Your agent's authority does not start the moment you sign. By default, it begins only once your attending physician, advanced practice registered nurse, or physician assistant determines you lack the capacity to make a specific decision, unless you have specified other conditions in the document (Minn. Stat. Sections 145C.06, 145C.07).

3. 3

   Unless you limit it, your agent can make any and all health care decisions for you, including consenting to, refusing, or withdrawing treatment, and reviewing your medical records.

4. 4

   Your agent generally cannot be a health care provider currently attending you, or that provider's employee, unless the person is your relative or you specifically authorize it in the document (Section 145C.03, Subdivision 2).

5. 5

   You can sign in front of two witnesses, where at least one must not be a health care provider giving you direct care, or sign before a notary instead. A notary may be your provider's employee, but your named agent or alternate agent can never serve as a witness or notary.

6. 6

   You can revoke the document at any time you have capacity, by destroying it, signing a dated written revocation, verbally telling two witnesses you revoke it, or signing a later Health Care Directive (Section 145C.09).

7. 7

   If you name your spouse or registered domestic partner as agent, their authority ends automatically once you begin divorce, annulment, or partnership termination proceedings, unless your document says otherwise.

8. 8

   Minnesota has no central state registry for Health Care Directives. Keep the signed original and give copies to your physician, your agent, and any alternate agents.

9. 9

   This is a different document from Minnesota's Durable Power of Attorney (Minnesota Statutes Chapter 523), which covers property and financial decisions, not health care.

Minnesota Requirements for Healthcare Power of Attorney

• Statutory Authority (Minnesota Statutes Chapter 145C)

  The Health Care Directive must comply with Minnesota Statutes Chapter 145C (Health Care Directives), Sections 145C.01 through 145C.18, which governs the creation, execution, and revocation of health care directives in Minnesota.

• Principal Capacity (Minnesota Statutes Section 145C.01, Subdivision 8)

  A principal must be an individual age 18 or older who has the capacity to execute a health care directive (Minn. Stat. Section 145C.01, Subdivision 8; Section 145C.02).

• Written Requirement (Minnesota Statutes Section 145C.03, Subdivision 1)

  The Health Care Directive must be in writing, dated, state the principal's name, and be signed by the principal or by another person authorized by the principal to sign on the principal's behalf (Minn. Stat. Section 145C.03, Subdivision 1).

• Witness Requirements (Minnesota Statutes Section 145C.03, Subdivision 3)

  The document may be verified by two witnesses or by a notary public. At least one of the two witnesses must not be a health care provider currently giving the principal direct care, or that provider's employee. The other witness may be. The principal's named health care agent or alternate agent can never act as a witness or as the notary, under either verification method (Minn. Stat. Section 145C.03, Subdivision 3).

• Agent Qualifications (Minnesota Statutes Section 145C.03, Subdivision 2)

  The health care agent must be at least 18 years of age (Minn. Stat. Section 145C.01, Subdivision 2) and cannot be a health care provider attending the principal, or that provider's employee, unless the agent is related to the principal by blood, marriage, registered domestic partnership, or adoption, or the principal has specifically authorized it in the directive (Section 145C.03, Subdivision 2).

• Agent Authority (Minnesota Statutes Sections 145C.06 to 145C.08)

  The document should specify the health care agent's authority, which by default includes making any and all health care decisions for the principal, including consenting to, refusing, or withdrawing treatment (Minn. Stat. Section 145C.07, Subdivision 1) and reviewing the principal's medical records (Section 145C.08), once the effectiveness condition in Section 145C.06 is met.

• Alternate Agents (Minnesota Statutes Section 145C.05, Subdivision 2(a)(1))

  The directive may designate one or more alternate health care agents to act if the named agent is not reasonably available to serve (Minn. Stat. Section 145C.05, Subdivision 2, paragraph (a), clause (1)).

• Effective Date (Minnesota Statutes Section 145C.06)

  The document should reflect that agent authority for a given decision becomes effective once the principal's attending physician, advanced practice registered nurse, or physician assistant determines the principal lacks decision making capacity for that decision, or once any other effectiveness condition the principal specified has been met (Minn. Stat. Section 145C.06).

• Revocation Provisions (Minnesota Statutes Section 145C.09, Subdivision 1)

  The principal may revoke the directive by destroying the instrument, or directing another to do so in the principal's presence, by signing a dated written revocation statement, by verbally expressing intent to revoke in the presence of two witnesses, or by executing a subsequent, inconsistent Health Care Directive (Minn. Stat. Section 145C.09, Subdivision 1). If the agent is the principal's spouse or registered domestic partner, that agent's authority is automatically revoked once dissolution, annulment, or termination proceedings commence, unless the directive states otherwise (Subdivision 2).

• HIPAA Authorization (45 CFR Section 164.508)

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

• Health Care Instructions on Life Sustaining Treatment (Minnesota Statutes Section 145C.05, Subdivision 2(a)(11))

  The directive may include living will style health care instructions, such as directions regarding artificially administered nutrition or hydration (Minn. Stat. Section 145C.05, Subdivision 2, paragraph (a), clause (11)) and other values, preferences, or directions regarding health care as defined in Section 145C.01, Subdivision 7a.

• Anatomical Gifts (Minnesota Statutes Sections 525A.01 to 525A.25)

  The directive may include the principal's wishes regarding organ and tissue donation under Minnesota's Revised Uniform Anatomical Gift Act, as expressly contemplated by Minn. Stat. Section 145C.05, Subdivision 2, paragraph (a), clause (5).

• Mental Health Treatment Decisions (Minnesota Statutes Section 145C.05, Subdivision 2(a)(6))

  The directive may include a declaration regarding intrusive mental health treatment under Minn. Stat. Section 253B.03, Subdivision 6d, or a statement that the health care agent is authorized to give consent for the principal under Section 253B.04, Subdivision 1a (Minn. Stat. Section 145C.05, Subdivision 2, paragraph (a), clause (6)).

• Pregnancy Provisions (Minnesota Statutes Section 145C.05, Subdivision 2(a)(10))

  The directive may include health care instructions by a person of child bearing age regarding how a pregnancy, if any, should affect health care decisions made on the principal's behalf.

• Patient Self-Determination Act Compliance (42 U.S.C. Section 1395cc(a)(1)(Q))

  Health care facilities that participate in Medicare and Medicaid must maintain written policies informing patients of their state law rights to make health care decisions and execute advance directives, including a Health Care Directive.

• Executed in Another State (Minnesota Statutes Section 145C.04)

  A health care directive or similar document validly executed in another state or jurisdiction is legally sufficient in Minnesota if it complies with the law of the state where it was executed, or complies with Minnesota's own requirements under Section 145C.03 (Minn. Stat. Section 145C.04).

• Liability Protection (Minnesota Statutes Section 145C.11)

  A health care agent acting in good faith is not subject to criminal prosecution or civil liability, and a health care provider acting in good faith reliance on a legally sufficient directive or an agent's good faith decisions receives the same protection (Minn. Stat. Section 145C.11).

• Guardianship Provisions (Minnesota Statutes Section 145C.07, Subdivision 2)

  Unless the principal specifies otherwise, appointing a health care agent also serves as a nomination of that person as guardian for purposes of Minn. Stat. Sections 524.5-101 to 524.5-502 (Minn. Stat. Section 145C.07, Subdivision 2).

• Reliance on Spiritual Means for Treatment (Minnesota Statutes Section 145C.05, Subdivision 2(b)(1))

  A principal who in good faith relies on prayer or spiritual means for treatment and has no attending physician, advanced practice registered nurse, or physician assistant may appoint an individual to determine the principal's decision making capacity (Minn. Stat. Section 145C.05, Subdivision 2, paragraph (b), clause (1)).

• Visitation Rights (42 CFR Section 482.13(h))

  The directive may specify the principal's wishes regarding visitation if hospitalized, including who should or should not be permitted to visit, consistent with the federal hospital patient visitation rights standard for Medicare participating hospitals.