Power of Attorney and Health Care – General – Hawaii

A durable power of attorney is a power of attorney by which a principal designates another as the principal’s attorney-in-fact in writing and the writing contains the words “This power of attorney shall not be affected by the disability of the principal,” “This power of attorney shall become effective upon the disability or incapacity of the principal,” or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability or incapacity.

All acts done by an attorney-in-fact pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and the principal’s successors in interest as if the principal were competent and not disabled.

A competent person who has attained the age of majority may execute a durable power of attorney authorizing an agent to make any lawful health care decisions pursuant to chapter 327E.

If, after execution of a durable power of attorney, a court of the principal’s domicile appoints a guardian of the property or other fiduciary charged with the management of all of the principal’s property or all of the principal’s property except specified exclusions, the attorney-in-fact is accountable to the fiduciary as well as to the principal. The fiduciary has the power to revoke or amend the power of attorney that the principal would have had if the principal were not disabled or incapacitated.

A principal may nominate, by a durable power of attorney, the guardian of the principal’s property, or guardian of the principal’s person for consideration by the court if protective proceedings for the principal’s person or property are thereafter commenced. The court will make its appointment in accordance with the principal’s most recent nomination in a durable power of attorney except for good cause or disqualification.

The death of a principal who has executed a written power of attorney, durable or otherwise, does not revoke or terminate the agency as to the attorney-in-fact or other person, who, without actual knowledge of the death of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds successors in interest of the principal.

The disability or incapacity of a principal who has previously executed a written power of attorney that is not a durable power does not revoke or terminate the agency as to the attorney-in-fact or other person, who, without actual knowledge of the disability or incapacity of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.

[§551D-5] Proof of continuance of durable and other powers. http://www.capitol.hawaii.gov/hrscurrent/Vol12/hrs551d/HRS_551D-5.htm

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