Power of Attorney and Health Care – General – Hawaii

UNIFORM DURABLE POWER OF ATTORNEY ACT
UNIFORM ANATOMICAL GIFT ACT

STATUTORY REFERENCE
ALL REFERENCES ARE TO THE HAWAII REVISED STATUTES

ADVANCE HEALTH-CARE DIRECTIVE
(§§ 327E-1 through 327E-16)

An “advance health-care directive” is an individual instruction or a power of attorney for health care.

An “agent” is an individual designated in a power of attorney for health care to make a health-care decision for the individual granting the power.

“Capacity” is an individual’s ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health-care decision.

A “guardian” is a judicially appointed guardian or conservator having authority to make a health-care decision for an individual.

“Health care” is any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect an individual’s physical or mental condition.

A “health-care decision” is a decision made by an individual or the individual’s agent, guardian, or surrogate, regarding the individual’s health care.

An “individual instruction” is an individual’s direction concerning a health-care decision for the individual.

A “power of attorney for health care” is the designation of an agent to make health-care decisions for the individual granting the power.

A “surrogate” is an individual, other than a patient’s agent or guardian, authorized under this chapter to make a health-care decision for the patient.

An adult or an emancipated minor may give an individual instruction. The instruction may be oral or written. The instruction may be limited to take effect only if a specified condition arises.

An adult or an emancipated minor may execute a power of attorney for health care, which may authorize the agent to make any health-care decision the principal could have made while having capacity. The power remains in effect notwithstanding the principal’s later incapacity and may include individual instructions.

Unless related to the principal by blood, marriage, or adoption, an agent may not be an owner, operator, or employee of the health-care institution at which the principal is receiving care.

The power must be in writing, contain the date of its execution, be signed by the principal, and be witnessed by one of the following methods:

Signed by at least two individuals, each of whom witnessed either the signing of the instrument by the principal or the principal’s acknowledgment of the signature of the instrument; or
Acknowledged before a notary public at any place within Hawaii.

A witness for a power of attorney for health care cannot be:

A health-care provider;

An employee of a health-care provider or facility; or

The agent.

At least one of the individuals used as a witness for a power of attorney for health care shall be someone who is neither:

Related to the principal by blood, marriage, or adoption; nor

Entitled to any portion of the estate of the principal upon the principal’s death under any will or codicil thereto of the principal existing at the time of execution of the power of attorney for health care or by operation of law then existing.

The authority of an agent becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity. A determination that an individual lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, must be made by the primary physician.

An agent must make a health-care decision in accordance with the principal’s individual instructions if and wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent’s determination of the principal’s best interest.

A health-care decision made by an agent for a principal is effective without judicial approval.

A written advance health-care directive may include the individual’s nomination of a guardian of the person.

An individual may revoke the designation of an agent only by a signed writing or by personally informing the supervising health-care provider.

An individual may revoke all or part of an advance health-care directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke.

A decree of annulment, divorce, dissolution of marriage, or legal separation revokes a previous designation of a spouse as agent unless otherwise specified in the decree or in a power of attorney for health care.

An advance health-care directive that conflicts with an earlier advance health-care directive revokes the earlier directive to the extent of the conflict.

A patient may designate or disqualify any individual to act as a surrogate by personally informing the supervising health-care provider. In the absence of such a designation, or if the designee is not reasonably available, a surrogate may be appointed to make a health-care decision for the patient.

A surrogate who has been designated by the patient may make health-care decisions for the patient that the patient could make on the patient’s own behalf.

A health-care decision made by a surrogate for a patient is effective without judicial approval.

The provisions of the Uniform Health Care Decisions Act do not affect the right of an individual to make health-care decisions while having capacity to do so.

An individual is presumed to have capacity to make a health-care decision, to give or revoke an advance health-care directive, and to designate or disqualify a surrogate.

A copy of a written advance health-care directive, revocation of an advance health-care directive, or designation or disqualification of a surrogate has the same effect as the original.

The statutory form may be modified to suit an individual’s needs or a completely different form may be used that contains the substance of the statutory form.

UNIFORM DURABLE POWER OF ATTORNEY ACT
(§§ 551D-1 through 551D-7)

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

UNIFORM ANATOMICAL GIFT ACT
(§§ 29-2-16-1 through 29-2-16-16)

An individual who is at least eighteen years of age may make an anatomical gift for any of the purposes stated in §327-6, limit an anatomical gift to one of those purposes, or refuse to make an anatomical gift.

An anatomical gift may be made only by a document of gift signed by the donor. If the donor cannot sign, the document of gift shall be signed by another individual and by two witnesses, all of whom have signed at the direction and in the presence of the donor and of each other, and state that it has been so signed.

An anatomical gift by will takes effect upon death of the testator, whether or not the will is probated. If, after death, the will is declared invalid for testamentary purposes, the validity of the anatomical gift is unaffected.

A donor may amend or revoke an anatomical gift, not made by will, only by:

A signed statement;

An oral statement made in the presence of two individuals;

Any form of communication during a terminal illness or injury addressed to a physician or surgeon; or

The delivery of a signed statement to a specified donee to whom a document of gift had been delivered.

The donor of an anatomical gift made by will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as set out above.

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