Recent changes to the durable power of attorney health care (“DPAHC”) law went into effect on March 20, 2014. 

Previously, an executed DPAHC would not operate to authorize the attorney in fact to obtain the principal’s health information until a health care provider determined the principal had lost the capacity to make informed health care decisions. The law now allows a DPAHC to authorize the attorney in fact to obtain the principal’s health information immediately upon execution of the document, or at a later stated time, without the requirement of a determination of lack of capacity. 

To be valid, a DPAHC must include the date of execution and be signed by the principal at the end of the document. The signature must either be acknowledged by the principal before a notary public, or witnessed by two adults who are not ineligible under the statute. 

The statute specifically lists the following as ineligible to witness a DPAHC:

  • Any person who is related to the principal by blood, marriage, or adoption; 
  • Any person who is designated as the attorney in fact or alternate attorney in fact in the instrument; 
  • The attending physician of the principal; 
  • The administrator of any nursing home in which the principal is receiving care

The addition of an alternate attorney in fact to the list of ineligible witnesses is also part of the recent amendment to the statute. 

Finally, the amendment adds provisions allowing a principal to nominate in a DPAHC a guardian of the principal’s person, estate, or both and clarifies provisions regarding how such a nomination can be revoked and what the court must do when multiple nominations have been made at different times.