Finance
Instrument: Power of attorney (POA)
What is it for?
Power of attorney (POA) allows an adult (the “principal”) to authorize another adult (the “attorney in fact”) to act in place of the principal.
What does it do?
The POA can authorize an agent to make decisions about financial matters, give health care decision-making authority, or both. Ind. Code Ann. §§ 30-5-2-2 to 19.
If the POA authorizes an attorney in fact to make health care decisions for the principal, then it must contain specific language provided at Ind. Code Ann. § 30-5-5-17. Note, however, that any health care powers granted to an attorney in fact in a POA that is executed after December 31, 2022 are void. Ind. Code Ann. § 30-5-5-16(c).
All acts performed by an attorney in fact have the same effect, provide the same benefit, and bind the principal in the same manner as if the principal had acted on the principal’s own behalf. Ind. Code Ann. § 30-5-8-1. Also, third parties who rely in good faith on a POA are immune to liability. Ind. Code Ann. § 30-5-8-7.
How does one make it?
To be valid, a POA must both name an attorney in fact in writing and give the attorney in fact either general or specific powers to act on behalf of the principal. It must be signed either by the principal or at the principal’s direction in the presence of a notary public. Should a POA be signed at the direction of the principal, the notary must state that the individual who signed the power of attorney on behalf of the principal did so at the principal’s direction. Ind. Code Ann. § 30-5-4-1.
When does it come into effect?
A POA may come into effect either immediately upon execution, specify the date on which the power will become effective, or become effective upon the occurrence of an event, such as a determination of incapacity. Ind. Code Ann. § 30-5-4-2.
Unless otherwise specified in the POA, a physician, licensed psychologist, or judge may determine in writing that the principal incapaciated, which will trigger the attorney in fact’s authority to act on the principal’s behalf.
How long does it last?
Unless otherwise stated, the POA terminates when the principal dies. Ind. Code Ann. § 30-5-10-4. Also, a POA is presumed to be “durable,” meaning that it remains in effect following a determination that the principal is incapaciated, unless the POA states otherwise. Ind. Code Ann. § 30-5-10-3.
How does one end it?
A duly executed POA may be revoked only in a writing that identifies the POA being revoked and is signed by the principal. However, the revocation only becomes effective if the attorney in fact or third party has actual knowledge of the revocation. Ind. Code Ann. § 30-5-10-1.
What does an example look like?
Indiana does not have a statutory POA form.
What else should one know?
Indiana’s POA statute is not based on the Uniform Power of Attorney Act.
Last updated April 2021
Education
Instrument: Educational representative appointment
What is it for?
An educational representative appointment allows a parent to make educational decisions on behalf of a student aged 18 years or older receiving special education services under the Individuals with Disabilities Education Act (IDEA). 511 Ind. Admin. Code 7-43-6.
What does it do?
An educational representative is responsible for giving the informed consent generally required for IDEA services from either a parent or an adult student. These educational decisions include approving their individualized education programs (IEPs), consenting to changes of placement or reevaluations, requesting due process hearings, and other important educational rights.
How does one make it?
An adult student can request in writing that the local educational authority (LEA) appoint an educational representative. Alternatively, others may make the request if they believe a student cannot provide informed consent for educational decisions as required by the IDEA. 511 Ind. Admin. Code 7-43-6(a).
In the latter case, two professionals must personally examine a student and certify in writing that the student is “incapable of providing informed consent.” This means that the student is unable to do the following three things: (1) understand on a continuing or consistent basis the nature, extent, and probable consequences of a proposed educational program or option; (2) make a rational evaluation on a continuing or consistent basis of the benefits or disadvantages of a proposed educational decision or program as compared with the benefits or disadvantages of another proposed educational decision or program; (3) and communicate such understanding in a meaningful way. 511 Ind. Admin. Code 7-43-6(f).
When does it come into effect?
Presumably, the appointment comes into effect immediately as soon as the LEA makes it. The appointment may be made no earlier than 60 days prior to the student’s 18th birthday. 511 Ind. Admin. Code 7-43-6(c).
How long does it last?
Presumably, the appointment lasts for the remainder of the student’s eligibility for special education services under the IDEA.
How does one end it?
The student may revoke a request for an educational representative in writing at any time. 511 Ind. Admin. Code 7-43-6(e).
However, Indiana’s regulation does not clearly describe a way for a student who does not request the appointment to object to or reverse an LEA’s appointment that was made based on two professionals’ certification that the student was unable to provide informed consent.
What does an example look like?
An example of the appointment request or professional certification is not available.
What else should one know?
The student’s parent will be appointed educational representative unless the parent is unavailable. In the latter case, a trained educational surrogate parent will be appointed. 511 Ind. Admin. Code 7-43-6(b).
Last updated April 2021
Health
Instrument: Health care representative appointment
What is it for?
An individual (the “declarant”) permitted to give consent to health care under Indiana law may appoint either an individual 18 years or older or an entity as health care representative to make health care decisions for the declarant. “Health care” includes any care, treatment, service, or procedure to maintain, diagnose, or treat an individual’s physical or mental condition. The term includes admission to a health care facility. Ind. Code Ann. § 16-36-1-1.
What does it do?
Unless the appointment provides otherwise, a health care representative has priority to act in all matters of health care for the declarant when the declarant is not capable of consenting. “Incapacity” and “incapacitated” are defined as the inability “to comprehend and weigh relevant information and to make and communicate a reasoned health care decision.” Ind. Code Ann. § 16-36-7-15.
In making decisions regarding the declarant’s health care, a representative must act in good faith and in the best interest of the declarant consistent with the purpose expressed in the appointment (if any). Ind. Code Ann. § 16-36-1-4(g). The declarant may include specific terms and conditions in the appointment, including an authorization to the representative to delegate the authority to consent to another.
A health care provider may, but is not obligated to, rely on the representative’s consent. Ind. Code Ann. § 16-36-1-10. If the provider believes an individual is incapable of consenting to health care, the provider has a duty to make a reasonable inquiry to discover if an individual has appointed a health care representative. Ind. Code Ann. § 16-36-1-17. An individual may not be required to appoint a health care representative in order to receive health care services.
How does one make it?
To be valid, a health care representative appointment must (a) be in writing; (b) be signed by the appointor or by a designee in the appointor’s presence; and (c) be witnessed by an adult other than the health care representative.
When does it come into effect?
The representative’s authority becomes effective when “in the good faith opinion of the attending physician, the individual is incapable of making a decision regarding the proposed health care.” Ind. Code Ann. § 16-36-1-4(a).
The appointment does not commence until the declarant becomes incapable of consenting. The representative’s authority to make health care decisions returns to the declarant if the declarant regains the capacity to consent. Ind. Code Ann. § 16-36-1-7(e).
How long does it last?
Presumably, the appointment lasts until the declarant dies or revokes the appointment.
How does one end it?
An individual who is capable of consenting to health care may revoke the appointment at any time by notifying the representative orally or in writing or the authority granted to the representative by notifying the health care provider orally or in writing. Ind. Code Ann. § 16-36-1-4(i).
What does an example look like?
The Indiana State Department of Health has created a Health Care Representative Appointment form that is available here.
What else should one know?
The declarant may affirmatively disqualify certain individuals from acting as health care representatives should the declarant become incapable of consenting to health care. The disqualification must be in writing, identify the disqualified individual(s), and be signed by the declarant. Ind. Code Ann. § 16-36-1-9.
Last updated April 2021
General
Instrument: Supported decision-making agreement (SDMA)
What is it for?
Supported decision-making refers to the process of supporting and accommodating an adult in the decision making process to make, communicate, and effectuate life decisions, without impeding the self-determination of the adult. Ind. Code Ann. § 29-3-14-1. A supported decision-making agreement (SDMA) is a document that outlines the decision-making supports and accommodations an adult chooses to receive from one or more supporters. Ind. Code Ann. § 29-3-14-2.
What does it do?
The SDMA ensures that requests or decisions made or communicated with the assistance of a supporter are recognized by others as the request or decision of the adult. Ind. Code Ann. § 29-3-14-6. A “supporter” is a person at least eighteen (18) years of age who has voluntarily agreed to assist an adult in the decision-making process as outlined in the adult’s SDMA. Ind. Code Ann. § 29-3-14-3.
A supporter is required to respect the will and preference of the adult and may not supplant that will and preference with the supporter’s opinion of the adult’s best interests. Ind. Code Ann. § 29-3-14-5(a). A supporter must act within the scope of authority stated within the SDMA and may not receive a fee for service related solely to services performed in the role of supporter or obtain, without the consent of the adult, information acquired for a purpose other than assisting the adult in making a specific decision described in the SDMA. Ind. Code Ann. § 29-3-14-5(c).
Third parties are not obligated to honor a decision made pursuant to an SDMA, although they may rely in good faith on such decisions if they so choose. In either case, they are not subject to criminal or civil liability, provided that the third party does not engage in fraud, misrepresentation, or similar conduct. Ind. Code Ann. § 29-3-14-11.
How does one make it?
An adult must enter into an SDMA voluntarily and without coercion or undue influence and also understand the nature and effect of the agreement. Ind. Code Ann. § 29-3-14-4(a). Adults subject to a guardianship order may not enter into an SDMA unless the guardian consents to it in writing. Ind. Code Ann. § 29-3-14-4(d).
The SDMA must be in writing and signed and dated by the adult in the presence of a notary. It must also describe the type of assistance each supporter will provide. Each supporter must sign a separate consent form which states the supporter’s relationship to the adult, willingness to serve as supporter, and acknowledgement of the supporter’s duties. Ind. Code Ann. § 29-3-14-7.
Note that an adult may make, change, or revoke an SDMA even if the adult does not have the capacity to independently manage the adult’s own health care, legal matters, or financial affairs. Ind. Code Ann. § 29-3-14-4(b).
When does it come into effect?
Presumably, the SDMA enters into effect upon signature and notarization by all parties.
How long does it last?
The SDMA lasts until the adult dies, the adult revokes the SDMA, or the supporter(s) withdraw without naming successor(s). Also, a court may invalidate an SDMA if it determines either that an adult lacked capacity to execute the SDMA or that a supporter exploited, abused, or neglected the adult. Last, a power of attorney executed after the SDMA may invalidate all or portions of the SDMA, unless otherwise stated in the power of attorney. Ind. Code Ann. § 29-3-14-9.
How does one end it?
An adult may revoke an SDMA at any time. The revocation must be in writing, and a copy of the revocation must be provided to each supporter. Ind. Code Ann. § 29-3-14-8.
What does an example look like?
The Indiana WINGS partners have developed a sample form available here. The supporter’s consent addendum is available here.
What else should one know?
A court may not consider an adult’s execution of a supported decision making agreement as evidence of incapacity. Ind. Code Ann. § 29-3-14-4(c).
Last updated April 2021