Retzner and Nichols: Indiana’s new advance health care directive

By Rodney Retzner and Micah Nichols

On July 1, Indiana significantly broadened the options for an individual to make health care wishes known through an “Advance Directive for Health Care Decisions.” Senate Enrolled Act 204, effective as of July 1, allows individuals to make their wishes known regarding health care and health care information through one written declaration (now codified in Indiana Code § 16-36-7, et seq.). An advance directive allows that individual to appoint a health care representative to make health care decisions for them once the individual lacks the capacity, as well as consult with providers even if the individual still has capacity. The health care representative may also be given access to an individual’s health care information. Finally, the advance directive makes known the individual’s wishes concerning end-of-life treatment and post-death planning (e.g., disposition of remains and anatomical gifts).

Prior to SEA 204, individuals typically executed three separate documents to make these decisions known: a health care power of attorney under I.C. 30-5-5-16, an appointment of health care representative under I.C. 16-36-1-7 and a living will declaration under I.C. 16-36-4-10. With the adoption of SEA 204, the document has been “streamlined,” allowing all decisions to be made known under one document, the advance directive. Moreover, after a transition period that ends Dec. 31, 2022, the advanced directive officially replaces those three documents, and the underlying statutes are superseded.

For individuals looking to create an advance directive, there is no required language or official or mandatory form. An advance directive can contain direction to a health care representative on a broad range of health care decisions, including decisions on life-prolonging procedures or palliative care, post-death planning, mental health treatment and applying for public benefits (such as Medicaid and the CHOICE program). The advance directive can also contain an authorization for a health care representative to obtain access to an individual’s health care records.

There are specific execution requirements for an advance directive. The document must be signed by the individual (or an individual may direct someone else to sign for him or her in that individual’s direct presence), and such signing must be in the presence of two witnesses or a notary public. The advance directive can be executed on paper or electronically.

The difficulty in executing documents during the COVID-19 pandemic resulted in SEA 204 allowing for remote execution options for advance directives. Under these options, an individual can sign an advance directive electronically through videoconference that includes the individual and two adult witnesses or a notary public. However, for a document to be notarized remotely, an Indiana notary public must still comply with Indiana law and regulations concerning “remote notarial acts” (See I.C. 33-42-17). Paper copies of the advance directive can also be signed in counterparts over videoconference that includes the individual and two adult witnesses or notary public (must still comply with Indiana law concerning “remote notarial acts”) as long as the counterparts are assembled into one document within 10 business days of the receipt of all counterparts. Further, an advance directive can also be signed during a live teleconference that includes the individual and two witnesses, which witnesses must be able to confirm the identity of the individual executing the advance directive and that individual’s capacity.

If an individual has already executed a health care power of attorney, appointment of health care representative and/or living will, such documents are still legally valid. However, after the end of the transition period (ending Dec. 31, 2022), if an individual wants to sign a new advance directive to replace his or her old documents or to perform any of the functions served by his or her prior three documents, the individual will have to use and sign the new-style advance directive under I.C. 16-36-7, et seq.

Once a health care provider is provided with an advanced directive, the provider must place a copy of the document in the individual’s medical record and may rely on health care decisions made in accordance with that advance directive unless the provider has actual knowledge that the advance directive has been revoked. Further, a health care provider that acts in good faith reliance on the advance directive is immune from liability to the individual signing the advance directive (and that individual’s heirs or other successors in interest).

Indiana attorneys should update their procedures and documents to align with SEA 204. After Dec. 31, 2022, the forms that Indiana attorneys have historical used (health care power of attorney, appointment of health care directive and living will declaration) will no longer be valid. Further, Indiana attorneys should also update their general durable power of attorney documents if their documents reference health care powers (I.C. 30-5-5-16) as such language will be void after Dec. 31, 2022. Due to the COVID-19 pandemic, Indiana attorneys should also be familiar with the various ways advance directives can be executed (whether in person, remotely or in counterparts) and the various requirements for witnessing and executing the advance directive. While the changes related to making health care decisions in SEA 204 were significant, SEA 204 and the new I.C. 16-36-7 looks to eliminate confusing and inconsistent provisions that were present across multiple Indiana statutes and to provide clearer and more streamlined rules in one statute for an individual to make his or her health care decisions known.•

• Rodney Retzner is a partner at Krieg DeVault LLP and is chair of the firm’s estate planning and administration practice. Micah Nichols is an associate at the firm. Opinions expressed are those of the authors.