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Medical Power of Attorney in Indiana: The Advance Directive, Witnesses and Living Wills
In Indiana, a medical power of attorney is now an advance directive naming a health care representative. It needs two adult witnesses or a notary. Here is how it works, from IC 16-36-7.
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What to know
- Indiana's medical power of attorney is now an advance directive under IC 16-36-7 that names a health care representative.
- It must be signed before two adult witnesses, at least one of whom isn't your parent's spouse or other relative, or before a notary (IC 16-36-7-28).
- Since January 1, 2023, a financial power of attorney can't grant health care powers, so health care decisions need this separate document.
- Unless it says otherwise, an Indiana advance directive takes effect as soon as it's signed, but your parent's own decisions come first while they have capacity.
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
A medical power of attorney in Indiana is created through an advance directive: a written declaration in which your parent can name a health care representative and state their health care wishes. Under IC 16-36-7-28, it must be signed "in the presence of two (2) adult witnesses or in the presence of a notarial officer." Indiana's law changed in 2021, and the older documents work differently, so the date your parent signed matters.
What is an advance directive in Indiana?
Under IC 16-36-7-2, an advance directive is a written declaration that "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." Your parent can use it to:
- name one or more health care representatives;
- state specific health care decisions;
- state preferences about life-prolonging procedures, palliative care or comfort care;
- specifically disqualify named people from serving as representative or proxy.
The health care representative can make health care decisions and receive your parent's health information. That can include applying for benefits such as Medicaid to help pay for care.
How is it different from a power of attorney or living will?
Each covers a different decision: the advance directive covers health care decisions and names a representative, a living will declaration covers life-prolonging procedures when death will occur within a short time, and a financial power of attorney covers money and property.
| Document | What it does | Law |
|---|---|---|
| Advance directive | Names a health care representative and records health care wishes | IC 16-36-7 |
| Living will declaration | Directs that life-prolonging procedures be withheld if death will occur within a short time | IC 16-36-4 |
| Financial power of attorney | Handles money and property; can't grant health care powers if signed after December 31, 2022 | IC 30-5 |
For the general picture, see power of attorney vs. advance directive. For the financial document, see our Indiana power of attorney guide.
How do you sign an advance directive in Indiana?
Your parent signs it, or another adult signs their name at their specific direction and in their presence, and then one of two things happens:
- Two adult witnesses sign in your parent's presence, "at least one (1) of whom may not be the spouse or other relative of the declarant"; or
- A notarial officer completes a notarial certificate, which can include a compliant remote online or electronic notarization.
The person who signs for your parent can't be a witness, the notary, or a health care representative named in the document. Witnessing can happen in person or in real time over audiovisual technology, and in limited cases by telephone when audiovisual contact is impossible or impractical; a notary can't use telephone-only interaction.
Who can be the health care representative?
The representative can be "a competent adult or other person" your parent designates. IC 16-36-7-28 bars the person who signs on your parent's behalf from serving as representative, and lets your parent disqualify specific people by name.
If your parent names more than one representative without saying how they act, each has "concurrent authority to act individually and independently." Each representative with current authority is also your parent's personal representative for federal health privacy purposes.
When does the representative's authority start?
Unless the directive states a later date or triggering event, it "is effective immediately upon signing and witnessing or acknowledgment" (IC 16-36-7-34). But "if the declarant has capacity to consent to health care, the declarant has the right to make health care decisions" that override the representative's.
If the directive says it starts on incapacity without naming a method, a written determination by a physician, licensed psychologist or judge triggers it. Unless it says otherwise, the directive continues until your parent's death or a valid revocation. If a court later appoints a guardian, the representative's authority continues unless the court changes it after a hearing.
Where do you get an Indiana advance directive form?
No particular form is required. Under IC 16-36-7-30, "A declarant is not required to use any official or unofficial form to prepare and sign a valid advance directive." The Indiana Department of Health says the same, and lists sample forms posted on third-party websites. Indiana Disability Rights publishes a free fill-in Health Care Representative form on the state's in.gov website.
Whatever form your parent uses, it must meet the signing rules above to be valid.
Does Indiana still have living wills?
Yes. Indiana's living will law, IC 16-36-4, remains in the code, and an advance directive can include a living will declaration. A living will must be in writing, dated and signed "in the presence of at least two (2) competent witnesses who are at least eighteen (18) years of age or a notary public" (IC 16-36-4-8).
Its witness rules are stricter than the advance directive's. A living will witness can't be your parent's parent, spouse or child, can't be entitled to any part of your parent's estate, and can't be directly financially responsible for your parent's medical care. The statutory living will form applies when the attending physician certifies in writing that your parent has an incurable condition, death will occur within a short time, and life-prolonging procedures would only artificially prolong dying.
What happens if your parent has no advance directive?
If your parent can't consent and has no advance directive in effect, IC 16-36-7-42 sets who can decide, in decreasing order:
- a court-appointed guardian or court-appointed health care representative;
- a spouse;
- an adult child;
- a parent;
- an adult sibling;
- a grandparent;
- an adult grandchild;
- the nearest other adult relative;
- an adult friend who has kept regular contact and knows your parent's activities, health and beliefs;
- a religious superior, if your parent is in a religious order.
If people at the same level disagree, "a majority of the available individuals at the same priority level controls." A spouse who is legally separated or has a pending dissolution or separation petition can't serve.
How do you revoke an Indiana advance directive?
Under IC 16-36-7-32, your parent can revoke it by:
- signing a new advance directive that meets the signing rules;
- signing a written revocation that meets the same signing rules;
- orally stating the intent to revoke "in the direct physical presence of a health care provider."
While your parent hasn't been determined to be incapacitated, they can always orally revoke a health care decision or preference in the directive. Under IC 16-36-7-34, a later directive replaces earlier ones unless it explicitly says an earlier one stays in effect.
What questions are worth asking before your parent signs?
Five questions cover the choices IC 16-36-7 leaves to your parent:
- Who would your parent trust to make health care decisions, and who should be second?
- Should the directive take effect now, or only on incapacity?
- Does your parent want to include living will instructions?
- Which two adults can witness, with at least one not a relative, or is a notary easier?
- Does an older health care document exist, and does it conflict with the new one?
Frequently asked questions
Does a medical power of attorney need to be notarized in Indiana?
No. An Indiana advance directive naming a health care representative can be signed before two adult witnesses, at least one of whom isn't your parent's spouse or other relative, or before a notary. Witnessing can also be done in real time by audiovisual technology, under IC 16-36-7.
Can a family member witness an Indiana advance directive?
One of the two witnesses can be. IC 16-36-7-28 requires that at least one of the two adult witnesses not be your parent's spouse or other relative. A separate living will under IC 16-36-4 is stricter: its witnesses can't be your parent's parent, spouse or child, or an heir.
Can my parent still use a health care power of attorney in Indiana?
Not a new one. Since January 1, 2023, a financial power of attorney can't grant health care powers, and the old health care representative appointment had to be signed before 2023. Today, health care decisions go in an advance directive under IC 16-36-7 that names a health care representative.
Where can I get an Indiana advance directive form?
No official form is required. The Indiana Department of Health lists sample forms on third-party sites, and Indiana Disability Rights publishes a free fill-in Health Care Representative form. Any form works if it's signed before two qualified adult witnesses or a notary, as IC 16-36-7-28 requires.
Is an advance directive from another state valid in Indiana?
Yes, if it met either set of signing rules. Under IC 16-36-7-28(j), a document signed while your parent lived in or was located in another state is treated as a valid Indiana advance directive if your parent wasn't incapacitated and it met Indiana's signing rules or the law of the state where it was signed.
Can my parent change their mind after signing?
Yes. Your parent can revoke an Indiana advance directive by signing a new one, signing a written revocation, or saying so in the direct physical presence of a health care provider. While they still have capacity, their own decisions override the health care representative's.
Getting started
An advance directive only helps if it's signed while your parent can sign it, with the right witnesses or a notary. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- Indiana Code 16-36-7, Advance Directives: definition (16-36-7-2), signing and witnesses (16-36-7-28), forms (16-36-7-30), revocation (16-36-7-32), effectiveness (16-36-7-34) and the proxy list (16-36-7-42).
- Indiana Code 16-36-4, Living Wills: the living will declaration and its witness rules.
- IC 30-5-5-16, Health care powers: the 2022 cutoff for health care powers in a power of attorney.
- Indiana Department of Health, Advance Directives Resource Center: sample forms and guidance.
- Indiana Disability Rights, Advanced Directive resources: the free Health Care Representative form.
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