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An injury, accident, or illness can leave a family member or loved one incapable of making decisions, self-care, or helping those for whom they are responsible, such as minor children.  The extent, duration, and nature of a person’s incapacity varies significantly in each circumstance; from a broken leg that leaves a single mother unable to care for her minor children for a few days, to a severe stroke that requires long-term around-the-clock care for its victim.  During any periods in which an individual is determined to be disabled, incapacitated, or incapable of managing his or her affairs, Indiana law establishes the priority and extent to which others can act on behalf of that person, unless an effective document designating an appointed representative has been executed in advance.

People often execute documents for use in the event of their incapacity because the priority and extent to which others are authorized to act in Indiana in the absence of these documents are inconsistent with their wishes, values, beliefs, or family circumstances.  Some people who execute these documents are aware their incapacity is imminent and others do so to prepare for the unexpected.  Regardless of the reason they are entered, these documents serve as a source of comfort to them by ensuring that their family and loved ones know their wishes and can carry them out if (or when) they are unable to do so.

Documents used to plan for incapacity are often executed in conjunction with other estate planning documents, such as wills and trusts.  People do, however, execute powers-of-attorney and health care directives alone.  For example, many college-age children execute only these documents to ensure that their parents or other trusted adults can assist them with their financial affairs and health care matters if circumstances ever require such assistance.  This article discusses what documents are routinely used to plan for a Hoosier’s incapacity.

Documents Used to Plan for Incapacity. 

Indiana law allows a competent adult to execute documents that nominate a representative or representatives to have priority in making decisions regarding that individual’s health care, when they are unable to do so, and to state his or her preferences on whether a physician should use life-prolonging procedures, if they are rendered incapable to do so by fatal injury or disease.[1]  A competent adult is also authorized to execute a power-of-attorney appointing another as their agent to perform general or specified acts, including decisions regarding their health care.[2]  In addition to these documents (which are discussed in more detail below), there are a number of other tools that can be used to plan for incapacity under Indiana law not addressed in this article, such as “do not resuscitate” declarations and statutory physician order for scope of treatment forms.

Designation of Health Care Representative.  A designation of health care representative gives a willing and available named representative or representatives (if more than one is named) the priority to act and make health care decisions for an incapacitated person in the manner authorized by that document until the injured person is capable of consenting to health care.[3]  If your loved one executed a document designating a health care representative, a copy of that document should be given to the named health care representative and to the health care providers that are being requested to rely on the authority granted to the health care representative.  That document may allow the health care representative to delegate his or her authority if they are not available for a period of time.[4]  The ability to delegate the health care representative’s authority may be necessary if, for example, the named health care representative is out of town when your loved one’s accident occurs. 

Living Wills and Life-Prolonging Procedures Declarations.  A living will declaration memorializes a person’s request for their physician not to use any – or to use only specified –life-prolonging procedures, such as nutrition or hydration, or for their authorized health care representative or power-of-attorney to make such a request when those procedures are only going to prolong their life but not prevent their death.[5]  A life-prolonging procedures declaration is different: it memorializes a person’s request that a physician use all procedures in order to  extend his or her life, provide comfort, or alleviate pain.[6]  Physicians are required to use life-prolonging procedures if your loved one has requested them under an effective declaration, but they are not obligated to honor a request not to use all or specific procedures .[7]  If your loved one executed either of these declarations, they only become effective when it is determined the patient has  an incurable injury, disease, or illness that is a terminal condition and that death will occur within a short time.  If this situation arises, a copy of the declaration should be provided to your loved one’s attending physician.[8] 

Power-of-Attorney.  Your loved one may also execute one or more powers-of-attorney, which designate a person or persons as attorney-in-fact to act on your loved one’s behalf with respect to affairs generally, or concerning only specific matters.[9]  A power-of-attorney may become effective upon your loved one’s incapacity or could have been effective for some time.  If your loved one executed a power-of-attorney, a copy of that document should be provided to the named attorney-in-fact and to those individuals and institutions that are being requested to rely on the powers granted to that attorney-in-fact.  If the attorney-in-fact is authorized to act with respect to real property, the document may also need to be recorded before any authorized transaction can be recorded.[10]

A power-of-attorney can, but need not, delegate health care decisions to the attorney-in-fact.[11]  Accordingly, your loved one may have both a power-of-attorney and designation of health care representative in place that name the same or different persons as attorney-in-fact  and health care representative, or designate a priority among them with respect to health care decisions.  The priority of decisions delegated under a power-of-attorney and designation of health care representative may be further affected by the priority specified relative to a living will or life-prolonging procedures declaration.  Therefore, it is essential to review these documents together to determine to what extent and to whom your loved one delegated the authority to consent to or refuse health care.

Decisions Concerning Minors.

If your loved one had children or others unable to consent for themselves for whom they were responsible, they may have executed documents that designate who can act and in what manner for those children and other persons.  Parents together or the parent (if only one) of minor children may generally execute a power-of-attorney to appoint another to act on their behalf and authorize medical treatment for their minor children in the event they are incapacitated or unavailable.[12]  These declarations are often used when parents or children travel, but can also be used following the incapacity of the parents.  Persons together or the person (if only one) responsible for others, including minor children and protected persons over whom they are guardian, may also execute a declaration of standby guardian to appoint a person as temporary guardian over those minors and protected persons after their death or incapacity for a period of time, or until a permanent guardian can be put in place.[13]  These declarations can be particularly important for loved ones who either do not have or would otherwise not be able to rely on those otherwise granted such authority under Indiana law.

Guardianships and Alternatives.

If your loved one’s incapacity will be for a prolonged period or is permanent, it may be necessary to have a guardian appointed over them in some circumstances.  In such event, a power-of-attorney may name a person or persons whom your loved one desired to serve as guardian of his or her person and estate.  A court will generally appoint a person nominated as guardian in a person’s most recent power-of-attorney unless good cause is shown or the nominated person is disqualified as a guardian.[14]  The person or persons nominated to serve as guardian in a power-of-attorney need not be the same as the attorney-in-fact.  However, a guardian’s powers are governed by the Indiana Probate Code, which does not confer as expansive authority to a guardian as those that may be granted to an attorney-in-fact under a general power-of-attorney.[15]  Therefore, if the nominated person is not also the attorney-in-fact, there could be no or limited need for a guardian.  Similarly, for those individuals whose assets are primarily held in trust or with competent spouses who own assets jointly, there could be no or limited need for a guardian because the trustee under the terms of the trust or spouse by operation of law, has the same or greater powers to act than could be granted to a guardian under the Indiana Probate Code. 

How to Carry-Out Your Loved One’s Plans.

So what does one need to do to carry out your loved one’s estate plans if they become injured, or worse?  Many people are aware that their family members and other loved ones have plans in place in the event of their incapacity or death.  Too often, however, it is not until a tragic event that family, friends, and those being asked to act learn their loved one’s exact wishes or ask what is needed to carry out their plans.  This creates confusion and delay and, in extreme circumstances, could prevent those plans from being carried out at all.

The best thing to do to avoid this situation  is to ask these questions of your loved ones now.  Although they may decline to answer your questions (which they have every right to do), having these difficult discussions in advance can prepare you and other family, friends, and loved ones for the emotional hours and days following an accident, sudden illness, or death.

If your loved one is incapacitated or has passed away and you have questions or need advice regarding documents or estate plans they have in place, an estate planning attorney should be able to provide you with assistance in these matters.  Additionally, if you are unable to locate originals or copies of any documents that you believe exist, the attorney who prepared those documents may be able to provide you or a person or institution named in those documents with copies or originals. 

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[1] Ind. Code §§ 16-36-1-1, et seq.

[2] Ind. Code §§ 30-5-1-1, et seq.

[3] Ind. Code § 16-36-1-7

[4] Ind. Code § 16-36-1-6

[5] Ind. Code § 16-36-4-10

[6] Ind. Code § 16-36-4-11

[7] Ind. Code § 16-36-4-8(f) and (g)

[8] Ind. Code § 16-36-4-8(e)

[9] Ind. Code §§ 30-5-5-1, et seq.

[10] Ind. Code § 30-5-3-2

[11] Ind. Code §§ 30-5-5-16 and 30-5-5-17

[12] Ind. Code § 16-36-1-5

[13] Ind. Code § 29-3-3-7

[14] Ind. Code § 30-5-3-4(a)

[15] Ind. Code § 30-5-3-4(b)


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