Section 16-36-7-34 - Presumptions applicable to advance directivesAn advance directive must be interpreted to carry out the known or demonstrable intent of the declarant. The following presumptions apply to an advance directive unless the terms of the advance directive explicitly prevent a presumption from applying:
(1) If the advance directive does not state a delayed effective date or a future triggering event for effectiveness, the advance directive is effective immediately upon signing and witnessing or acknowledgment in compliance with section 28 of this chapter. However, if the declarant has capacity to consent to health care, the declarant has the right to make health care decisions, give consent, or provide instructions that supersede or overturn any decision that is made or could be made by the declarant's health care representative.(2) If the advance directive does not explicitly state an expiration date or a triggering event for termination, the advance directive and the authority of each designated health care representative continues until the death of the declarant or until an earlier valid revocation of the advance directive.(3) If an advance directive designates two (2) or more health care representatives and does not specify that: (A) the health care representative's respective authority to act is subject to an order of priority; or(B) the health care representatives must act jointly or on a majority vote basis; each health care representative has concurrent authority to act individually and independently to make health care decisions for the declarant. If two (2) or more health care representatives who are required to act jointly disagree about a health care decision, or if two (2) or more health care representatives who are authorized to act independently give conflicting instructions to a health care provider, the health care provider may decline to comply with the conflicting instructions, and in an urgent or emergency situation, the health care provider may provide treatment consistent with the instructions of one (1) physician or one (1) advanced practice registered nurse who examines or evaluates the declarant.
(4) If:(A) an individual signs more than one (1) advance directive at different times; and(B) the later signed advance directive does not explicitly state that one (1) or more of the previous advance directives by the declarant remain in effect; each previous advance directive is superseded and revoked by the last signed advance directive.
(5) Unless the advance directive explicitly provides otherwise, each health care representative who is designated in an advance directive continues to have authority after the death of the declarant to do the following:(A) Make anatomical gifts on the declarant's behalf, subject to any previous written direction by the declarant.(B) Request or authorize an autopsy.(C) Make plans for the disposition of the declarant's body, including executing a funeral planning declaration on behalf of the declarant under IC 29-2-19.(6) Each health care representative who is designated in an advance directive and who has current authority to act is a personal representative of the declarant for purposes of 45 CFR Parts 160 through 164.(7) If an advance directive explicitly provides that the authority of one (1) or more health care representatives is to be effective upon the future incapacity, disability, or incompetence of the declarant but if the advance directive does not specify a method or procedure for determining the incapacity, disability, or incompetence of the declarant:(A) the health care representative's authority to act becomes effective upon a determination that the declarant is incapacitated that is stated in a writing or other record by a physician, licensed psychologist, or judge; and(B) each health care representative who is designated in the advance directive is authorized to act as the declarant's personal representative under 45 CFR 164.502(g) to obtain access to the declarant's information, and to communicate with the declarant's health care providers, for the purpose of gathering information necessary for determinations under this subdivision.(8) Each health care representative who is designated in an advance directive and who has current authority to make health care decisions for the declarant has authority to consent to mental health treatment for the declarant.(9) If the advance directive is silent on the issue of compensation for a health care representative designated in the advance directive, then each health care representative is entitled to receive the following: (A) Reasonable compensation from the declarant's property for services or acts actually performed by the health care representative and for the declarant.(B) Reasonable reimbursement from the declarant's property for out-of-pocket expenses actually incurred and paid by the health care representative from the health care representative's own funds in the course of performing services or acts for the declarant under the advance directive. Any health care representative may waive part or all of the compensation or expense reimbursements that the health care representative would be entitled to receive under the terms of the advance directive or under this subdivision.
(10) If an advance directive explicitly provides that the authority of a health care representative is effective only at times when the declarant is incapacitated or unable to consent to health care, then unless the advance directive explicitly states another procedure: (A) the health care representative's authority becomes effective when a determination of the declarant's incapacity is noted in the declarant's medical records under section 35(d) of this chapter; and(B) the health care representative's authority becomes inactive when the declarant regains capacity.(11) If the authority of a health care representative under the advance directive is effective immediately upon signing by the declarant, the health care representative's authority may be rescinded or superseded by the direct decisions of the declarant at all times when the declarant has not been determined to be incapacitated.(12) If:(A) an advance directive designates one (1) or more health care representatives; (B) a health care representative is not reasonably available to act for the declarant; and(C) the declarant is incapacitated or not competent to make personal health care decisions; then subject to any order of priority explicitly stated in the advance directive, each health care representative designated in the advance directive must be given the opportunity to exercise authority for the declarant.
(13) If explicitly allowed or required in the advance directive, each person who may act as a proxy for the declarant under sections 42 and 43 of this chapter, if an advance directive had not existed, has the right to make a written demand for and to receive from a health care representative a narrative description or other appropriate accounting of the actions taken and decisions made by a health care representative under the advance directive. Notwithstanding any provision in the advance directive, a health care representative who prepares a narrative description or accounting in response to a written demand is entitled to reasonable compensation for the time and effort spent in doing so.(14) Notwithstanding any provision in the advance directive, if a declarant is not competent to amend or revoke the declarant's advance directive, then a person who may act as a proxy for the declarant under sections 42 and 43 of this chapter has the right to petition a probate court with jurisdiction over the declarant for any of the following relief:(A) An order modifying or terminating the advance directive.(B) An order removing a health care representative or terminating the authority of a person who holds delegated authority under the advance directive, on the grounds that the health care representative or person is not acting or is declining to act in the best interests of the declarant.(C) An order directing a health care representative to make or carry out a specific health care decision for the declarant.(D) An order appointing a new or additional health care representative, on the grounds that all health care representatives designated in the advance directive are not reasonably available to act. Before issuing an order under this subdivision, the court must hold a hearing after notice to the declarant, to each health care representative, and any other person whose rights or authority could be affected by the order, and to any persons who have the highest priority under sections 42 and 43 of this chapter to serve as a proxy for the declarant if an advance directive had not existed. An order issued under this subdivision must be guided by the declarant's best interests and the declarant's known or demonstrable intent.
Added by P.L. 50-2021,SEC. 63, eff. 7/1/2021.