Finance
Instrument: Power of Attorney (POA)
What is it for?
The “power of attorney” (POA) grants an individual (the “principal”) the authority to grant another person (the “agent”) to make decisions concerning the principal’s property on the principal’s behalf.
What does it do?
The POA empowers the agent to be able to make decisions and act with respect to the principal’s property. Unless the POA expressly limits the agent’s authority, the agent is granted authority over a broad range of matters, including managing the principal’s money, receiving government benefits, entering into contracts, and pursuing legal claims. Haw. Rev. Stat. Ann. § 551E-31. The agent’s authority does not extend to the power to make health care decisions. Haw. Rev. Stat. Ann. § 551E-2.
Unless a POA expressly states otherwise, a POA is considered to be “durable,” which means the agent’s authority continues during a period when the principal lacks capacity. Haw. Rev. Stat. Ann. § 551E-3(a).
In making decisions for the principal, the agent must act in good faith, only within the scope of the authority granted in the POA, and in accordance with the principal’s known expectations and in the principal’s best interest. Haw. Rev. Stat. Ann. § 551E-10.
Third parties must generally accept decisions made by the agent as if the principal had made them. They may, however, request the agent for a certification of the POA’s validity prior to relying on the agent’s authority. Haw. Rev. Stat. Ann. § 551E-16.
How does one make it?
The POA must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name, and it must be notarized. Haw. Rev. Stat. Ann. § 551E-3(b).
When does it come into effect?
The power of attorney becomes effective immediately upon execution unless the instrument states that it becomes effective at a future date, when the principal becomes incapacitated, or upon the occurrence of future event. Haw. Rev. Stat. Ann. § 551E-5 (West)
If a power of attorney becomes effective upon a future date, occurrence, or event, a principal may designate one or more persons to determine that the future date, occurrence, or event has occurred in writing. Haw. Rev. Stat. Ann. § 551E-5 (b).
If a power of attorney becomes effective upon the principal’s incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the power of attorney becomes effective upon a determination in a writing or other record by one of two means.
First, the determination of incapacity must be made by a physician if the principal has an impairment in their ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Haw. Rev. Stat. Ann. § 551E-5 (c)(1).
Second, the determination of incapacity must be made by an attorney at law, a judge, or an appropriate governmental official if the principal is missing or disappeared; detained; or outside the United States and unable to return. Haw. Rev. Stat. Ann. § 551E-5 (c)(ii).
The POA can state that the agent’s authority begins either immediately upon execution, at a future date, or upon the occurrence of a future event, such as the principal’s incapacity. Haw. Rev. Stat. Ann. § 551E-5
If a POA becomes effective upon a future date, occurrence, or event, the principal may designate one or more persons to determine that the future date, occurrence, or event has occurred in writing. If the future occurrence is the principal’s incapacity, then that determination will be made by a physician or licensed psychologist who has evaluated the principal, unless the POA states otherwise. Haw. Rev. Stat. Ann. § 551E-5(c).
For the purpose of this determination, “incapacity” means the principal is unable to manage their property or business affairs for two main reasons due to an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Haw. Rev. Stat. Ann. § 551E-1.
How long does it last?
The POA generally lasts until the principal or agent dies; the principal revokes the POA; the POA provides that it terminates upon some future date or event; the purpose of the POA is accomplished; or the agent’s authority is revoked. Haw. Rev. Stat. Ann. § 551E-6.
How does one end it?
Presumably, the principal may revoke the POA at any time by either destroying the POA and notifying the agent or by another method that communicates the principal’s intent to revoke.
What does an example look like?
A statutory POA form is available at Haw. Rev. Stat. Ann. § 551E-51. An agent’s certification form is provided at Haw. Rev. Stat. Ann. § 551E-52.
What else should one know?
Hawaii’s POA is based on the Uniform Power of Attorney Act.
Last Updated November 2022
Education
Instrument: Power of Attorney for Special Education (POASE)
What is it for?
The “power of attorney for special education” (POASE) allows a student receiving special education services aged 18 years or older to appoint another adult (the “agent”) to assist in the development and implementation of the student’s education programs. Haw. Rev. Stat. § 302A-491(b).
What does it do?
The POASE allows an adult student to give an agent the ability to assist in the development and implementation of the adult student’s educational programs. The agent may also receive individual instructions from the adult student prior to confirming the POASE. Haw. Rev. Stat. § 302A-491(b)).
How does one make it?
The POASE must be in writing that is dated and executed in the state of Hawaii. The POASE must also specifically identify the agent by full name and their relationship to the adult student and indicate if the adult student retains the ultimate power to make educational decisions or if the agent has full authority to make decisions. The POASE must specify that it is revocable and indicate the method for the adult student to revoke it. Finally, it must be signed by the adult student and either witnessed by two adults or notarized. Haw. Rev. Stat. § 302A-491(b).
When does it come into effect?
Presumably, the agent’s authority comes into effect immediately upon execution.
How long does it last?
Unless the POASE states otherwise, the agent’s authority will continue throughout the adult student’s eligibility for special education until revoked by the student. Haw. Rev. Stat. § 302A-491(d).
How does one end it?
The student may revoke the POASE by the method stated in the POASE itself. Haw. Rev. Stat. § 302A-491(b).
What does an example look like?
Hawaii does not provide a statutory example.
What else should one know?
Through a separate process, school districts may also appoint an educational representative (ER) to make educational decisions on behalf of an adult student if “a student lacks decisional capacity to provide informed consent.” More information about that special procedure is described at Haw. Rev. Stat. § 302A-493 and summarized here.
Last Updated November 2022
Health
Instrument: Power of Attorney for Health Care (POAHC)
What is it for?
The “power of attorney for health care” (POAHC) is a kind of advance health-care directive that allows an adult (the “principal”) to empower another individual (the “agent”) to make healthcare decisions on their behalf should the adult lack capacity to do so.
What does it do?
The POAHC authorizes the agent to make any health-care decision the principal could have made while having capacity without prior approval from a court. Haw. Rev. Stat. Ann. § 327E-5(h). Health-care decisions include, but are not limited to:
(1) Selection and discharge of health-care providers and institutions;
(2) Approval or disapproval of diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and
(3) Direction to provide, withhold, or withdraw end-of-life treatment. Haw. Rev. Stat. Ann. § 327E-2.
The agent’s power remains in effect notwithstanding the principal’s later incapacity and also may include individual instructions for how the agent must make health-care decisions for the principal. Haw. Rev. Stat. Ann. § 327E-3(b). Notwithstanding a POAHC, a healthcare provider must attempt to promptly communicate to the principal the decision made by the agent. Haw. Rev. Stat. Ann. § 327E-7(a).
An agent must make health-care decisions in accordance with the principal’s individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent must make a decision in accordance with the agent’s determination of the principal’s best interest, after having duly considered the principal’s personal values known to the agent. Haw. Rev. Stat. Ann. § 327E-3(g).
How does one make it?
While individual instructions for healthcare decisions may be oral or written, the POAHC must be in writing, dated, signed by the principal, and either witnessed by two eligible adults or notarized. Haw. Rev. Stat. Ann. § 327E-3(b).
When does it come into effect?
Unless otherwise specified in the POAHC, the authority of an agent becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity. Haw. Rev. Stat. Ann. § 327E-3(e).
Unless the POAHC states otherwise, the principal’s primary physician will determine if the principal either lacks or has recovered capacity. Haw. Rev. Stat. Ann. § 327E-3(f). For the purpose of this determination, “capacity” means an individual’s ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health-care decision. Haw. Rev. Stat. Ann. § 327E-2.
How long does it last?
The POAHC generally lasts until the principal either revokes it, regains capacity, or executes a POAHC that conflicts with a prior POAHC. Haw. Rev. Stat. Ann. §§ 327E-3 & 4.
How does one end it?
The principal may revoke the designation of an agent only by executing a signed writing or by personally informing the supervising healthcare provider. Haw. Rev. Stat. Ann. § 327E-4(a). Other portions of an advance health-care directive, however, may be revoked at any time and in any manner that communicates an intent to revoke. Haw. Rev. Stat. Ann. § 327E-4(b).
What does an example look like?
Hawaii provides optional statutory form for executing an advance health-care directive, which may include the POAHC, at Haw. Rev. Stat. Ann. § 327E-16. Hawaii’s Executive Office on Aging has developed a sample form available here.
What else should one know?
Healthcare providers may not require or prohibit the execution or revocation of [an] advance health-care directive as a condition for providing health care. Haw. Rev. Stat. Ann. § 327E-7(h)
Last Updated November 2022
General
No information available at this time.