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Health
Instrument: Advance Health Care Directive (AHCD)
What is it for?
Alaska’s Advance Health Care Directive (AHCD) allows an adult (the “principal”) to appoint an “agent” to make health care decisions for the adult and/or to give “health care instructions” regarding the adult’s preferences for health care treatment.
What does it do?
The portion of the AHCD for designating an agent is also called a “durable power of attorney for health care.” This portion of the ACHD lets a principal name another individual as an agent to make health care decisions for the principal if they do not have the capacity to make their own decisions. Unless the form signed limits the authority of the agent, the agent may make all health care decisions that the principal could legally make. An agent must make a health care decision in accordance with the principal’s individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent’s determination of the principal’s best interest. Alaska Stat. § 13.52.010(h). Once the agent’s authority begins, the agent has the same access to the principal’s health information as the principal would have. Alaska Stat. § 13.52.070.
How does one make it?
It is made by having the principal complete the statutory form, and after completing the form, signing and dating the form at the end and having the form witnessed by one of the two methods listed (either having 2 witnesses unrelated to the principal or who do not benefit under the terms of the principal’s will sign, or having the form notarized).
Health care agent designations must be in writing that is signed and dated by the principal. They must also either be witnessed by two adults aside from the agent or notarized. Alaska Stat. § 13.52.010(b).
Health care instructions may be either oral or written. Alaska Stat. § 13.52.010(a).
When does it come into effect?
The health care agent’s authority generally becomes effective when the principal’s primary physician determines that the principal lacks capacity, unless the AHCD specifies otherwise or the incapacity is due to mental illness. The agent’s authority ceases when the primary physician determines that the principal has recovered capacity. Alaska Stat. § 13.52.010(f). The AHCD does not affect the principal’s right to make health care decisions while retaining capacity to do so. Alaska Stat. § 13.52.100(a).
How long does it last?
The AHCD lasts until the principal dies or revokes it.
How does one end it?
Revocation of a health care agent designation must be in writing and signed by the principal. Alaska Stat. § 13.52.020(a). Revocation of other aspects of the AHCD, such as health care instructions, may be either orally or in writing. Alaska Stat. § 13.52.020(b).
What does an example look like?
Alaska Legal Services Corp. provides an example here.
What else should one know?
Unless related to the principal, the agent may not be an owner, operator, or employee of a health care institution where the principal is receiving care.
Last updated April 2021
General
Instrument #1: Supported decision-making agreement (SDMA)
What is it for?
SDMAs “allows an adult to receive decision-making assistance with the adult’s affairs from one or more other adults.” Alaska Stat. § 13.56.010(a). The adult executing the SDMA is the “principal,” and the adults providing decision-making assistance are “supporters.”
What does it do?
The SDMA describes the decision-making assistance that each supporter may provide the principal. An SDMA does not give supporters the power to make decisions for the principal: the principal retains that right. Also, the principal is not obligated to obtain assistance from a named supporter before making a decision. Alaska Stat. § 13.56.150(b).
The SDMA may cover decisions in one or more of the following areas:
(1) monitoring health, obtaining, scheduling, implementing, and coordinating health and support services, understanding health care information and options, providing for care and comfort, and other health care and personal matters in which the principal makes decisions about the principal’s health care;
(2) managing income and assets and the use of income and assets for clothing, support, care, comfort, education, shelter, and payment of other liabilities of the principal;
(3) handling personal, health care, and financial matters that arise in the course of daily living;
(4) monitoring information about the principal’s support services, including future necessary or recommended support services;
(5) living arrangements, including where and with whom the principal wants to live; and
(6) working arrangements, including where the principal wants to work. Alaska Stat. § 13.56.160.
Supporters may provide the following kinds of decision-making assistance, unless otherwise stated in the SDMA:
(1) assisting with making decisions, communicating decisions, and understanding information about, options for, the responsibilities of, and the consequences of decisions;
(2) accessing, obtaining, and understanding information that is relevant to decisions necessary for the principal to manage the principal’s affairs, including medical, psychological, financial, and educational information, medical treatment records, and other records;
(3) ascertaining the wishes and decisions of the principal, assisting in communicating those wishes and decisions to other persons, and advocating to ensure the implementation of the principal’s wishes and decisions; and
(4) accompanying the principal and participating in discussions with other persons when the principal is making decisions or attempting to obtain information for decisions. Alaska Stat. § 13.56.100.
Use of decision-making assistance or execution of an SDMA cannot be used as evidence of the principal’s incapacity. Alaska Stat. § 13.56.150(c) & (d).
How does one make it?
To make an SDMA, the adult must sign the agreement voluntarily, without coercion or undue influence. The adult must also understand “the nature and the effect” of the SDMA. Alaska Stat. § 13.56.010(b).
The SDMA must be dated, in writing, and signed by the principal and each named supporter. Their signatures must either be witnessed by two adults who are not supporters named on the SDMA or notarized. For individuals with guardians or conservators, they must also notify the guardians or conservators for the SDMA to be valid. Alaska Stat. § 13.56.040.
The SDMA must contain a separate declaration by each supporter that states the supporter’s relationship with the principal, states the willingness of the supporter to act as a supporter for the principal, and indicates that the supporter acknowledges the duties of a supporter under this chapter. Each declaration must be signed by the supporter making the declaration. Alaska Stat. § 13.56.050.
Finally, the SDMA must also contain a notice for third parties summarizing the rights and obligations of the supporters. Alaska Stat. § 13.56.030.
When does it come into effect?
Unless specified otherwise, the SDMA comes into effect immediately upon execution. Alaska Stat. § 13.56.070.
How long does it last?
The SDMA may specify an expiration date. Otherwise, it is effective until the adult or a supporter terminates the SDMA. Alaska Stat. § 13.56.070. The agreement will also become invalid if the principal is subsequently found to need a guardian or a conservator.
How does one end it?
Either the principal or a supporter must terminate the SDMA in a signed writing that is either witnessed or notarized, as with the original SDMA. The party terminating the SDMA must also notify the other parties of the termination. Alaska Stat. § 13.56.080.
What does an example look like?
Alaska provides a statutory form at Alaska Stat. § 13.56.180.
What else should one know?
Supporters may not be employees of the principal or paid support service providers, unless they are paid family members. Alaska Stat. § 13.56.020.
Note that an adult may not enter into an SDMA if the SDMA encroaches on the authority of a guardian or conservator of the adult, unless the guardian or conservator approves in writing the adult entering into the supported decision-making agreement. Alaska Stat. § 13.56.010(c).
Instrument #2: Power of attorney (POA)
What is it for?
The power of attorney (POA) is an instrument that an adult (the “principal”) can use to appoint one or more other adults (the “agent(s)”) to make certain decisions for the principal. The POA does not cover health care decisions; those decisions must be addressed through an advance health care directive.
What does it do?
The POA allows an agent to make decisions regarding the principal’s property and finances, legal actions to defend the principal’s interests, personal relationships and affairs, voter registration and absentee ballot requests, and many other matters that the principal may specify in the POA. Alaska Stat. § 13.26.645.
A “durable” POA remains in effect after the principal’s incapacity. Incapacity is defined as “inability of an individual to manage property or business affairs because the individual has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance.” Alaska Stat. § 13.26.695(3)(A). In order for the POA to be durable it must contain the words “This power of attorney shall become effective upon the incapacity of the principal,” or “This power of attorney shall not be affected by the subsequent incapacity of the principal,” or words substantially similar showing the principal’s intent for the POA to remain in effect after the principal’s incapacity. Alaska Stat. § 13.26.675.
The agent must follow the principal’s reasonable expectations (to the extent they are known), and otherwise, in the principal’s best interest. The agent must also act in good faith and only within the scope of authority granted in the power of attorney. And the agent must act loyally for the principal’s benefit and keep a record of acts taken on behalf of the principal, among other duties. Alaska Stat. § 13.26.610.
Third parties may request an agent’s certification that the agent’s authority is valid before accepting a decision made on the principal’s behalf. Alaska Stat. § 13.26.615.
How does one make it?
The POA must be either signed by the principal or signed at the principal’s direction in the principal’s conscious presence, and notarized. Alaska Stat. § 13.26.600.
When does it come into effect?
When the agent’s power to make decisions for the principal becomes effective depends on the POA. An agent’s power can be effective immediately, or it can be made effective only upon the principal’s incapacity.
How long does it last?
The POA ends if the principal dies, is incapacitated (only if the POA is not durable), revokes the POA, or revokes the agent’s authority. The POA also ends if its purpose is accomplished or if the POA itself provides that the POA will end at a certain time. Finally, the POA ends if the agent dies or resigns and the POA does not provide for a successor agent. Alaska Stat. § 13.26.620.
How does one end it?
Alaska’s statute does not specify how the principal should revoke the POA. The Alaska Legal Services Corporation’s POA booklet states that the principal may revoke the POA by either destroying it or signing and notarizing a written notice of revocation.
What does an example look like?
Alaska has a statutory form available at Alaska Stat. § 13.26.645.
What else should one know?
Alaska’s POA is not based on the Uniform Power of Attorney Act.
Last updated April 2021