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Health
Instrument: Durable power of attorney for health care (DPOAHC)
What is it for?
The “durable power of attorney for health care” (DPOAHC) is a document authorizing an “attorney in fact” (and one or more alternates) to make health care decisions for the principal if the principal is unable, in the judgment of the attending physician, to make health care decisions. “Health care” is defined to include any care, treatment, service, or procedure to maintain, diagnose, or treat an individual’s physical or mental condition. Iowa Code Ann. § 144B.1.
What does it do?
The DPOAHC authorizes the attorney in fact to make health care decisions for the principal if the durable power of attorney for health care substantially complies with Iowa’s statute. Iowa Code Ann. § 144B.2. The principal may also provide specific instructions to the attorney in fact in the document. Iowa Code Ann. § 144B.5(2).
The attorney in fact has authority to make a particular health care decision only if the principal is unable, in the judgment of the attending physician, to make the health care decision. If the principal objects to a decision to withhold or withdraw health care, the principal shall be presumed to be able to make a decision. Further, the attorney in fact has a duty to act in accordance with the desires of the principal as expressed in the DPOAHC or otherwise made known to the attorney in fact at any time. If the principal’s wishes are not known, then the attorney in fact must act in the principal’s best interests. Iowa Code Ann. § 144B.6.
How does one make it?
The DPOAHC must explicitly authorize the attorney in fact to make health care decisions, contain the date of execution, and either be witnessed by two individuals in the presence of each other and the principal who also witnessed the principal’s signing or acknowledged before a public notary. If witnessed, at least one witness must not be a relative by blood, marriage, or adoption. Also, neither witness may be an attending health care provider, its employee, or the attorney in fact. Iowa Code Ann. § 144B.3.
When does it come into effect?
The attorney in fact’s authority comes into effect only when the principal is unable, in the judgment of the attending physician, to make the health care decision. Iowa Code Ann. § 144B.6(1).
How long does it last?
Presumably, until the principal dies or revokes the DPOAHC.
How does one end it?
A DPOAHC may be revoked at any time and in any manner by which the principal is able to communicate the intent to revoke, without regard to mental or physical condition.
Revocation may be by notifying the attorney in fact orally or in writing. Revocation may also be made by notifying a health care provider orally or in writing while that provider is engaged in providing health care to the principal. Last, a subsequent DPOAHC automatically revokes a prior one. Iowa Code Ann. § 144B.8(3).
A revocation is only effective as to a health care provider upon its communication to the provider by the principal or by another to whom the principal has communicated revocation. The health care provider shall document the revocation in the treatment records of the principal. Iowa Code Ann. § 144B.8.
What does an example look like?
The Iowa State Bar has developed a DPOAHC form that incorporates the suggested statutory language found at Iowa Code Ann. § 144B.5(1): https://www.iowabar.org/?pg=MedicalPowerofAttorney
What else should one know?
A health care provider is shielded from liability for relying on by an attorney in fact if the provider believes in good faith the attorney in fact is authorized to make health care decisions for the principal and also if that decision is not inconsistent with the principal’s wishes either as stated in the DPOAHC or known to the provider. Iowa Code Ann. § 144B.9(1).
Also, a provider cannot condition health care services on execution of a DPOAHC. Iowa Code Ann. § 144B.11.
Last updated April 2021
General
Instrument: Power of attorney (POA)
What is it for?
The power of attorney (POA) is a document that allows any person age 18 or older (the “principal”) to appoint either one agent or two or more coagents to make financial decisions on the principal’s behalf.
What does it do?
The POA grants an agent the authority to make decisions only about the principal’s property. (A principal needs to execute a “durable power of attorney for health care” to appoint an agent for health matters.) The POA is presumed to be “durable” unless it expressly states otherwise, meaning that the POA remains in effect even if the principal is determined to be incapacitated.
Iowan law defines “incapacity” as the inability of an individual to manage property or business affairs because the individual is any of the following: an individual whose decision-making capacity is so impaired that the individual is unable to make, communicate, or carry out important decisions concerning the individual’s financial affairs or an individual who is detained or incarcerated in a penal system or located outside the United States and unable to return.
An agent appointed through a POA must act in good faith, only within the scope of authority specified in the POA, and in accordance with the principal’s reasonable expectations. An agent also must act loyally, avoid conflicts of interest, and act with care, competence, and diligence consistent with a fiduciary duty. Iowa Code Ann. § 633B.114.
The POA for financial matters must be accepted by third parties, unless they have a good faith reason for refusing to do so, such as actual knowledge that another person has reported to adult protective services that the agent may be abusing, neglecting, or exploiting the principal. A third party may not require a principal’s POA to be created using a specific form; instead, the third party must accept a POA that substantially complies with the requirements at Iowa Code Ann. § 633B.105. However, a third party may request a written certification from the agent of the POA’s validity. Iowa Code Ann. § 633B.120.
How does one make it?
A POA must be signed by the principal or in the principal’s conscious presence by another individual, other than any prospective agent, directed by the principal to sign the principal’s name on the POA. A POA must be acknowledged before a notary public or other individual authorized by law to take acknowledgments. Iowa Code Ann. § 633B.105.
When does it come into effect?
A POA becomes effective when it is executed unless the principal states in the document that it becomes effective at a future date or upon the occurrence of a future event or contingency. If a POA becomes effective upon the principal’s incapacity, the principal may specify a person in the document to make that determination. If not, either a licensed physician or licensed psychologist or a judge must do so in writing. Iowa Code Ann. § 633B.109.
How long does it last?
The POA generally lasts until either the principal revokes it; the principal dies; the agent dies or becomes incapacitated or resigns; or upon the DPOA’s termination date, if one is provided. Iowa Code Ann. § 633B.110. A POA may also be terminated if a court appoints a guardian or conservator.
How does one end it?
The principal may revoke and invalidate a POA for financial matters in the same way as an SDMA, namely, by destroying the instrument or directing another in the presence of the adult with a functional impairment to do so. An adult may also either state verbally in the presence of two witnesses or in a signed and dated writing that he or she wishes to revoke the POA. Also, a subsequent POA for financial matters automatically revokes a previous one.
What does an example look like?
There is no general statutory form.
What else should one know?
Iowa’s POA is based on the Uniform Power of Attorney Act.
Although Iowa’s POA statute specifically discusses financial matters, the Iowa Department of Education indicates that parents and students may also consider executing a POA in order to avoid transfer of parental rights under the IDEA. See https://drive.google.com/file/d/1xEs1GY271gwxpHkTWxUQHPZrUgpUsJiB/view
Last updated April 2021