Anaya Nolan
In Indiana, a health care representative is a person appointed to make health-related decisions for a patient who is incapable of consenting to healthcare measures. The state's laws allow for the delegation of authority to another individual to make healthcare decisions. This delegation of authority is outlined in the Appointment of Health Care Representative document, which works in tandem with a Living Will. The appointed representative has a fiduciary duty to act in good faith and in the best interests of the patient, making decisions they believe the patient would have made if capable. The representative is also responsible for providing written consent when required and accessing relevant health information. While Indiana does not require a specific form for appointing a health care representative, it must be in writing, signed by the patient, and witnessed by two adults.
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What You'll Learn
A health care representative's authority
In Indiana, a health care representative is appointed to make health care decisions on behalf of a declarant (or principal) who is unable to consent to their own care. This typically occurs when the declarant is incapacitated, either due to illness or mental incapacity.
The health care representative's authority comes into effect when the declarant becomes incapable of consenting to their own health care. The representative has the authority to make all health care decisions on behalf of the declarant, but they must act in good faith and make decisions that they believe the declarant would have made if they were capable. This includes taking into account the express or implied intentions of the declarant, or their best interests if the representative is unaware of their intentions.
The health care representative has the authority to:
- Access the declarant's health information
- Provide written consent for treatment, including a physician's order not to resuscitate
- Apply for public benefits, such as Medicaid, on the declarant's behalf
- Make financial decisions, such as engaging in real property or bank transactions, and making claims or entering into litigation on behalf of the declarant
It is important to note that the declarant can specify terms and conditions for the health care representative, including the authority to delegate decision-making to another individual. The representative's authority can also be expressly limited by the declarant in an advance directive, and their authority continues even if a court appoints a guardian for the declarant, unless the court modifies or revokes it.
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The role of a power of attorney
A power of attorney (POA) is a legal document that gives one person the power to act for another. The person who receives the authority is referred to as the agent or attorney-in-fact, and the subject of the POA is called the principal. The agent can have broad legal authority or limited authority to make decisions about the principal's property, finances, or medical care.
There are two key types of POAs: financial and healthcare. A financial POA authorizes the agent to represent the principal in all property and financial matters as long as the principal is of sound mind. A healthcare POA enables the agent to make crucial decisions on behalf of an incapacitated person.
A power of attorney can be revoked by the principal at any time, as long as they are deemed mentally competent to do so. In the case of a married couple, the authorization may be invalidated if the principal and the agent divorce. A power of attorney may also be terminated if the principal dies or revokes the agreement, or if a court invalidates it.
In Indiana, a power of attorney can include limited powers for a specific situation (a limited power of attorney) or general powers to cover many unforeseeable situations (a general power of attorney). A principal can appoint a health care representative to make decisions on their behalf, and this representative can be authorized to delegate their authority to another individual. The appointment of a health care representative in Indiana must be in writing, signed by the principal, and witnessed by two adults other than the health care representative.
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Medical consent laws
In Indiana, a health care representative is appointed to make health care decisions on behalf of the appointor (also known as the principal) when they are no longer capable of consenting or making decisions for themselves. This appointment is made in writing, signed by the appointor, and witnessed by two adults other than the health care representative.
The health care representative has the authority to make health care decisions, access the appointor's health information, and provide written consent when required. They are expected to act in good faith and make decisions that the appointor would have made if they were capable, taking into account their express or implied intentions. If the intentions are unknown, the representative must act in the appointor's best interests.
The appointor may specify terms and conditions in the appointment, including the authorization for the representative to delegate the authority to consent to another individual. This delegation becomes effective when the appointor becomes incapable of consenting, and it is no longer effective if the appointor regains the capacity to consent.
In Indiana, if there is no appointed health care representative, state medical consent laws determine who makes health care decisions. In such cases, a health care provider may seek the appointment of a guardian, defined as "a person who is a fiduciary and is appointed by a court to be a guardian or conservator as the court may direct for the person or the property of an incapacitated person or a minor."
It is important to note that the Social Security Administration and some other government agencies do not recognize powers of attorney, and an attorney-in-fact may not always represent the principal in every circumstance.
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The appointment process
In Indiana, a health care representative is appointed to make health care decisions for a declarant (or principal) when the declarant becomes incapable of consenting to health care measures. The appointment of a health care representative is similar to a power of attorney, except that the former is limited to health care decisions.
To appoint a health care representative in Indiana, there is no need for a specific form. The appointment must simply be in writing, signed by the declarant, and witnessed by two adults other than the health care representative. The written appointment can be adjusted to meet the needs or preferences of the declarant. It can specify terms, conditions, and contingencies, including directions for how to deal with certain end-of-life decisions and authorization for the representative to delegate the authority to make health care decisions to another individual.
The authority and responsibilities of a health care representative include:
- Acting in good faith and making health care decisions that the declarant would have made under the circumstances if they were capable of making the decisions, taking into account the express or implied intentions of the declarant.
- Providing written consent when required, including a physician's order not to resuscitate.
- Accessing the appropriate health information of the declarant.
- Applying for public benefits, including Medicaid and community and home care options, for the declarant and having access to information regarding the declarant's income, assets, and banking.
- Discussing health care decisions with the patient and following the patient's wishes, if possible.
It is important to note that the authority granted to the health care representative becomes effective when the declarant becomes incapable of consenting. If the declarant regains the capacity to consent, the authority granted to the representative is no longer effective. Additionally, if there is a court-appointed guardian for the declarant, the authority of the health care representative may be modified or revoked by the court.
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The role of a guardian
In Indiana, a guardian is a person who is a fiduciary and is appointed by a court to be a guardian or conservator as directed by the court for the person or property of an incapacitated person or a minor. The term includes a temporary guardian, a limited guardian, and a successor guardian but excludes a guardian ad litem.
A guardian has the authority to provide written consent when required, including a physician's order not to resuscitate. They also have the authority to access the appropriate health information of the declarant and to apply for public benefits, such as Medicaid and the community and home options to institutional care for the elderly and disabled (CHOICE) program.
In Indiana, a health care representative can be appointed to make health care decisions on behalf of an individual who is incapable of providing health care consent. This appointment can be made in writing, signed by the individual, and witnessed by two adults other than the health care representative. The appointment can specify terms, conditions, and contingencies, including directions for end-of-life decisions and the authorization to delegate authority to another individual.
If a health care representative is not appointed or is unavailable, Indiana's Medical Consent Law provides a hierarchy for health care decision-making. In this case, the health care provider must make a reasonable inquiry into the availability of those who can act pursuant to the priority law by examining the medical records and personal effects of the individual who is incapable of providing consent.
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Frequently asked questions
A healthcare representative is someone appointed to make future health-related decisions on behalf of the principal in the event that the principal becomes incapacitated.
To be valid, the appointment must be in writing, signed by the principal, and witnessed by two adults other than the healthcare representative. The appointment can be adjusted to meet the needs or preferences of the principal and can specify terms, conditions, and contingencies, including directions for how to deal with certain end-of-life decisions.
Yes, a healthcare representative can delegate their authority to another individual to make healthcare decisions on their behalf. This is particularly useful in circumstances where the representative is unable to be present, as was the case for many families during the COVID-19 pandemic.
