Finance
Instrument: Power of Attorney (POA)
What is it for?
The “power of attorney” (POA) allows an adult (the “principal”) to appoint another (the “agent”) to manage their affairs in a variety of financial or other matters.
What does it do?
The POA empowers the agent to make decisions and act with respect to the principal’s property. Unless expressly limited by the POA, the agent’s authority is broad and includes but not limited to managing real estate, making banking transactions, pursuing claims and litigation, and operating a business or entity. 18 R.I. Gen. Laws Ann. § 18-16-2. The POA may also authorize the agent to make decisions on “all other matters.” 18 R.I. Gen. Laws Ann. § 18-16-12.
Unless the POA expressly states otherwise, the POA is considered to be “durable,” which means the agent’s authority continues during a period when the principal lacks capacity. 18 R.I. Gen. Laws Ann. § 18-16-2.
How does one make it?
The POA must be in writing that is dated and signed by the principal and notarized. 18 R.I. Gen. Laws Ann. § 18-16-2. Although the POA may, but need not be, in the statutory short form provided at 18 R.I. Gen. Laws Ann. § 18-16-2, the POA must contain the notice in boldface type to the principal provided in the statutory short form. 18 R.I. Gen. Laws Ann. § 18-16-2(d).
When does it come into effect?
The statutory short form may only be used to create a POA that takes effect immediately. 18 R.I. Gen. Laws Ann. § 18-16-2(a). To create a “springing” POA, which takes effect only upon a future occurrence or contingency, such as the principal’s incapacity, the principal will have to use a different POA form. 18 R.I. Gen. Laws Ann. § 18-16-2(c).
How long does it last?
The agent’s authority can be of indefinite duration or terminate on a specified date, unless the principal terminates the POA by either revocation, destruction or other affirmative action demonstrating the principal’s intent to end the POA. 18 R.I. Gen. Laws Ann. § 18-16-2(a).
How does one end it?
Unless the POA specifies a date when it automatically ends, the agent’s authority will end either when the principal dies or revokes the POA. 18 R.I. Gen. Laws Ann. § 18-16-2.
What does an example look like?
A statutory short POA form is available at 18 R.I. Gen. Laws Ann. § 18-16-2.
What else should one know?
Rhode Island’s statutory short POA is not based on the UPOAA.
Last update November 2022
Education
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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 one kind of advance directive that allows an adult (the “principal”) to appoint one or more others (the “agent(s)”) to make health care decisions on behalf of the principal should the principal lack capacity to do so.
What does it do?
The DPOAHC gives the agent authority to consent, to refuse to consent, or to withdraw consent to any care, treatment, service, or procedure to maintain, diagnose, or treat a physical or mental condition on behalf of the principal when even after the principal is unable to participate actively in decisions about themselves. 23 R.I. Gen. Laws Ann. § 23-4.10-2.
The principal may expressly limit the scope of the agent’s authority in the DPOAHC itself, and the principal retains the right to object to any health care decision made by the agent at any time. 23 R.I. Gen. Laws Ann. § 23-4.10-2.
The agent must act consistently with the principal’s desires as stated in the DPOAHC or otherwise made known to them. 23 R.I. Gen. Laws Ann. § 23-4.10-2.
How does one make it?
In order to make an DPOAHC, the principal must complete the statutory form available at 23 R.I. Gen. Laws Ann. § 23-4.10-2.
The DPOAHC must be signed and either witnessed by two qualified adult witnesses or one notary public. Either one of the witnesses or the notary public must also declare they are not related to the principal and they do not stand to inherit any of the principal’s property. 23 R.I. Gen. Laws Ann. § 23-4.10-2.
When does it come into effect?
Presumably, the agent’s authority is effective if the principal is determined to be unable to participate actively in health care decisions about themselves. 23 R.I. Gen. Laws Ann. § 23-4.10-1.
How long does it last?
Unless a DPOAHC expressly specifies a shorter period, the DPOAHC will remain in effect until it is revoked. 23 R.I. Gen. Laws Ann. § 23-4.10-2.
How does one end it?
The principal may revoke a DPOAHC at any time and in any manner in which the principal communicates an intent to revoke either orally or in writing, without regard to the principal’s mental or physical condition. The revocation will become effective once the principal’s attending physician or other health care provider is notified by either the principal or a witness of the revocation. 23 R.I. Gen. Laws Ann. § 23-4.10-3.
The principal may also revoke a prior DPOAHC by executing a subsequent DPOAHC. 23 R.I. Gen. Laws Ann. § 23-4.10-2.
What does an example look like?
The required statutory DPOAHC form is available at 23 R.I. Gen. Laws Ann. § 23-4.10-2. The Rhode Island Department of Health also provides a DPOAHC form here.
What else should one know?
Execution of a DPOAHC may not affect the sale or terms of life insurance policies, nor may execution of a DPOAHC be a condition of being insured for or receiving health care services. 23 R.I. Gen. Laws Ann. § 23-4.10-9(b)-(c).
Last update November 2022
General
Instrument: Supported Decision-Making Agreement (SDMA)
What is it for?
The “supported decision-making agreement” (SDMA) allows any adult with a physical or mental disability that substantially limits one or more major life activities (the “principal”) to appoint one or more persons as “supporters” who will provide decision-making assistance regarding a variety of financial, health, and other decisions.
What does it do?
The SDMA allows a supporter to provide the principal with assistance in gathering and assessing information, making informed decisions, and communicating decisions for adults who would benefit from decision-making assistance. 42 R.I. Gen. Laws Ann. § 42-66.13-2(a)(1).
These life decisions may include decisions related to where the adult wants to live; the services, supports, and medical care the adult wants to receive; with whom the adult wants to live; and where the adult wants to work. 42 R.I. Gen. Laws Ann. § 42-66.13-3(8).
Supporters may assist the principal in making and communicating decisions but may not substitute as the decision maker for the principal. 42 R.I. Gen. Laws Ann. § 42-66.13-2(a)(3). Unless the SDMA states otherwise, supporters are authorized to do all of the following:
(1) Assist the principal in understanding information, options, responsibilities, and consequences of the principal’s life decisions, including those decisions relating to the principal’s affairs or support services;
(2) Help the principal access, obtain, and understand any information that is relevant to any given life decision, including medical, psychological, or educational decisions, or any treatment records or records necessary to manage the principal’s affairs or support services;
(3) Assist the principal in finding, obtaining, making appointments for, and implementing the principal’s support services or plans for support services;
(4) Help the principal monitor information about the principal’s affairs or support services, including keeping track of future necessary or recommended services; and
(5) Ascertain the wishes and decisions of the principal; assist in communicating those wishes and decisions to other persons; and advocate to ensure that the wishes and decisions of the principal are implemented. 42 R.I. Gen. Laws Ann. § 42-66.13-6(a).
How does one make it?
The SDMA must be in a dated writing that is signed by the principal and each of the supporters and either witnessed by two eligible adults or notarized. 42 R.I. Gen. Laws Ann. § 42-66.13-5(c). Each supporter must declare their relationship to the principal, their willingness to act as a supporter, and their acknowledgement of their role as supporter. 42 R.I. Gen. Laws Ann. § 42-66.13-5(e).
The SDMA must designate at least one supporter, describe the types of decisions the supporter is authorized to help with, and provide for the types of decisions, if any, that the supporter may not assist with. 42 R.I. Gen. Laws Ann. § 42-66.13-5(a).
When does it come into effect?
Presumably, the supporter’s authority to provide assistance comes into effect immediately when the SDMA is executed.
How long does it last?
The length of time an SDMA lasts is determined by the document. Additionally a principal or a supporter may revoke a supported decision-making agreement at any time in writing and with notice to the other parties to the agreement. 42 R.I. Gen. Laws Ann. § 42-66.13-5 (g)
How does one end it?
A principal or a supporter may revoke a supported decision-making agreement at any time in writing and with notice to the other parties to the agreement. 42 R.I. Gen. Laws Ann. § 42-66.13-5(g).
What does an example look like?
A statutory SDMA form is available at 42 R.I. Gen. Laws Ann. § 42-66.13-10.
What else should one know?
Execution of an SDMA may not be used as evidence of incapacity and does not preclude the ability of the principal to act independently of the SDMA. 42 R.I. Gen. Laws Ann. § 42-66.13-4(c).
Last update November 2022