By Michael Wilhelm and Elizabeth Bell

What is a health care representative?

A health care representative is a person authorized by an Advanced Directive to make healthcare decisions on behalf of another individual who is unable to make those decisions. This can include decisions and consents concerning medical treatment, hospitalization, and end-of-life care.

Until recently, it was common for a person to appoint a health care representative and give authority and instructions in three separate documents: an appointment of health care representative, a health care power of attorney, and a living will.

How has this changed?

Senate Enrolled Act No. 204 (“SEA 204”), which defines an “advanced directive” as “A written declaration of a declarant who…gives instructions or expresses preferences or desires concerning any aspect of the declarant’s health care or health information, including the designation of a health care representative, a living will declaration made under IC 16-36-4-10, or an anatomical gift made under IC 29-2-16.1,” went into effect July 1, 2021.  It allows individuals to make their wishes known regarding their health care and health care information through one written declaration, an “Advanced Directive for Health Care Decisions’‘. Healthcare advanced directives signed on or after January 1, 2023 can no longer be combined with a power of attorney granting financial powers.

This single Advanced Directive allows an individual to appoint a health care representative to make health care decisions for them if that individual lacks the capacity, to consult with providers even if the individual has capacity, and gives the representative access to the individual’s confidential health care information. It also provides for the articulation of the individual’s wishes concerning end-of-life care.

According to SEA 204, an Advanced Directive must be signed by the declarant and witnessed by either two adults or a notary public. This may be performed in person or remotely.

What you should know

If an individual executed an appointment of health care representative, a health care power of attorney, and/or a living will prior to January 1, 2023, these documents are still legally valid. You may want to review them to be sure these documents still represent your wishes. If you feel that some of the new changes allow for your wishes to be better represented, talk to an estate planning attorney about the new law and the new provisions.  A review of your existing documents is always recommended if there have been any significant changes in your life (such as new children or grandchildren, divorce, remarriage, or a significant change in your health or net worth), if your documents were executed in another state, or if your documents are more than five years old.

Disclaimer. The contents of this article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult with counsel concerning your situation and specific legal questions you may have.