Indiana Power of Attorney Overview
The Indiana Power of Attorney is defined as a "power of attorney for health care" or a "power of attorney for finances." In either case, it is used when one person (the donor) wants to empower another person (the donee) to act on their behalf in either financial or medical matters. There is a difference between them: the first empowers a person to make health decisions when the donor no longer can. The second empowers a person to address the, often financial, matters in which the donor no longer is able to take care of themselves. In many cases, however, they are used together.
Both Indiana Power of Attorney forms require the donor to be competent when signing. Whether the donor actually is competent or not is a legal determination made down the road but typically means that the donor understands what is giving away their rights and that there are consequences for doing so. The power of attorney is not valid if it was given when the person was not competent to do so: an examination is done by a physician to determine whether the donor is mentally competent . Note, however, that there is a presumption of competence and the burden is on those who contest the power of attorney to prove otherwise. Further, once the donor is deemed incompetent, the power of attorney automatically terminates.
A power of attorney often is essential, especially in states like Indiana, a state with only a few, time consuming and costly avenues to contest it. In addition, there are those who may choose to exploit a person who is incompetent.
A power of attorney also is important because it allows someone else to act on behalf of the donor. As long as they have the right forms, a power of attorney gives the ability to execute documents and take actions legally binding on behalf of the donor. It also allows the donee to make medical decisions on behalf of the donor when they are no longer able to do so.
Indiana has a statutory form of a power of attorney for health care and one for finances. These are the only two powers of attorney recognized and courts will not recognize any others.
How Do I Get an Indiana Power of Attorney Form PDF?
There are several sources from which to acquire a power of attorney form. The first stop for many is the Bureau of Motor Vehicles (BMV) website or the office which manages such for the state. The BMV’s website provides direct access to state documents. Such is true in this case, where you can locate the Indiana Power of Attorney Form PDF via their official site.
The resource can be accessed directly here: [Indiana Power of Attorney Form PDF]. It takes you directly to the document at issue.
Those in need of the document may also choose to obtain these documents via a paid service. Such a service may cost as little as ten dollars for the individual forms you require. This price generally includes a money back guarantee, allowing you to seek out another option if you are not satisfied.
Types of Power of Attorney
Aside from the state-specific rules in Indiana Power of Attorney Form PDF and the general statutory requirements in Indiana Code ยง 30-5-4.5, there are multiple types of power of attorney to consider in Indiana.
A general power of attorney is a durable power of attorney that retains its usefulness and validity even after the principal becomes disabled. A general power of attorney gives broad powers to an agent. This can include the ability to withdraw money from the principal’s accounts and enter into contracts on behalf of the principal. Clearly, an agent would need some protections, such as the types of protections provided in Indiana Code Section 30-5-5, to prevent the agent from abusing these powers. Because of the great risks involved, a specific power of attorney generally should be considered over a general, durable power of attorney.
A special or limited power of attorney is a written document that allows an agent to do one or more specific acts. A special power of attorney is not necessarily considered a durable power of attorney. Thus, you need to specifically request that the document be constructed to remain in effect if you become disabled. Nevertheless, if the special power of attorney does not include a durable power of attorney representation clause, then it will immediately become ineffective if you become disabled. If you only want your agent to have limited authority to act for you, then a special power of attorney with a durable representation clause would be preferable over a general power of attorney.
How to Fill out Indiana Power of Attorney Form
Filling out a power of attorney form is one of the more difficult things you will do as a part of an estate plan. There are a number of reasons for this. For starters, there are many different types of durable powers of attorney. As we will discuss later, there are a few different Indiana statutory forms that you can use. While those forms should be acceptable in most cases, there is no single form that will work for everybody and every situation.
In this article we are going to deal with the form that is currently used in Indiana. The actual section on completing the form is simple. While the form itself is two pages, it only takes a couple sentences to explain how to complete it.
The only required spaces on the form are the name of an attorney in fact, the names of the husband and wife in the case of a couple, signatures of the person providing the power of attorney and witness sections.
The four places that are free to add additional information are the next sections after each attorney in fact. Those four sections deal with the granting of powers, the future effective date of the power of attorney, the ability to appoint substitute attorneys and the ability to exercise the principal’s right to demand a copy of a patient’s health record. While there are regulations that allow you to authorize those items, the authorization language is not included in the form.
By providing all of this extra information, the drafter of the form has ensured that all of the powers that are granted in the act have been covered, without having to specifically write out the language. The drafter has also included the provisions under the HIPPA section that are necessary to include to have the power of attorney treated as being granted by the person giving the power of attorney.
Since most of the other provisions in the act are optional, and an attorney could draft themselves into trouble simply by putting in one of those provisions, it is not possible to make a general recommendation on doing more to the form without getting specific with an attorney experienced in helping clients with estate plans.
One item that does have to be completed is the name and signature of notary public. If there is one thing that our office feels strongly about is making sure that any Indiana estate planning documents are notarized. Attorneys who do estate plans tend to be notaries, and will frequently be investigating the hiring of a notary public for getting your document signed. It is a good idea to find out if the notary public is also an attorney. It is also important that they do estate planning. It is also necessary that the notary public be willing to work with the client to obtain the proper signatures.
Once you have the signature of your attorney in fact and the notary public, you need to sign the form yourself and a witness needs to sign as well. The only requirement is that the witness be older than 18, or at least not enough younger that there would be any question. The powers that you have given shall commence immediately.
General Legal Issues Surrounding Indiana Power of Attorney
A durable Indiana power of attorney can be either routinely durable or springing. The routine durable POA usually begins its power immediately upon its execution, while the springing durable POA takes effect only when some other contingency – such as government disability – occurs. Most people choose the more common durable POA, but the alternative is available to those who want to take full advantage of the Indiana legislature’s flexible durable power of attorney law.
Indiana codified its durable power of attorney statutes in Chapter 30-5 of the Indiana Code. Within that chapter the legal requirements for a valid durable power of attorney form are spelled out.
The Indiana General Assembly has determined that a durable power of attorney created pursuant to Indiana Code Section 30-5-6 must be signed by the principal and the attorney-in-fact. This signature can be done in any location in the world, but careful observance of the following two witnesses is required. The principal must sign or acknowledge the instrument in the presence of two witnesses who are over the age of eighteen (18). Moreover , the two witnesses must then sign either at the very same time or in the presence of the principal’s attorney-in-fact in order to have the declaration that they are aware of their role.
Not only is compliance with the statutory requirements essential – but there are added benefits to doing so. For example, under Indiana law a durable POA that complies with the statutory requirements provides third parties with a safe harbor. Ind. Code Section 30-5-9. This means that as long as the statutory durable POA is followed and has the signatures of the principal and the agent, a third party cannot be held liable for refusing or delaying to honor it. That is particularly important because of Indiana statutory immunity from claims of wrongdoing on the part of financers when the POA has been signed, sealed and delivered as required. Statutory compliance is thus vital to the effectiveness of a durable power of attorney in Indiana.
Common Mistakes Made with the Indiana Power of Attorney
Common mistakes can turn the Indiana Power of Attorney into a almost useless document. This is true whether it is a financial power of attorney or health care power of attorney. It can also be true whether you are creating the form or signing as an agent under the power of attorney. Here are some common mistakes and how to avoid them:
- Failing to sign or to sign in the right places. Some people don’t grasp that they must sign the power of attorney in all the places required whether or not it would seem to apply to them. For example, an agent may foolishly believe that it doesn’t matter whether he or she signs a power of attorney because the document will only apply after the principal has died. The problem is that the requirement to sign would still apply if the principal were to become incompetent and was still alive. Without a signature in that spot, the whole power of attorney could be invalidated.
- Leaving a space for a signature unfilled. Maybe the signature lines are not clear as to who should sign where, which is not uncommon. Or maybe the person creating the document can’t quite reach the undecorated bottom portion of the power of attorney, where the signature lines are. Whatever the reason, using a letter or ink tape to connect the two signatures can sometimes be enough to convince an unfriendly bank to accept the power of attorney, but not always. It’s best to avoid this type of problem in the first place by knowing ahead of time which signatures should go where, and placing them precisely.
- Failing to include notary public seals and signatures when a notary was present. Yes, there are times when notarization isn’t required to create a valid Indiana power of attorney, but there are also times when it is required. If there was a notary present at the signing of the power of attorney, having that notary go ahead and endorse the document will save a lot of trouble later on. On the other hand, convincing the bank to accept the power of attorney without a notary will not be easy.
- Failing to include witness signatures and information. State law actually does allow a power of attorney to be created without witnesses, but banks don’t like this feature nonetheless. Including two witnesses who have not and are not related and who are not otherwise interested in the signing is a good idea.
FAQs on the Indiana Power of Attorney Form
Why would I need an Indiana power of attorney?
For all Indiana residents, the main value in a power of attorney is in making sure that your financial and property matters are handled if you find yourself suddenly unable to make sound decisions due to a health condition. With a properly drafted power of attorney, you can also set up specific directions to be followed by your attorney-in-fact, or your agent, in managing your real estate or other property, so that your former wishes are followed after you have become incapacitated.
Are there different types of Indiana power of attorney forms?
Yes, in Indiana, it’s possible to execute a general power of attorney, a durable power of attorney, and a health care power of attorney. In practice, a general power of attorney and a durable power of attorney can be the same document, subject to a few exceptions pertaining to real estate and certain other property. A health care power of attorney , on the other hand, is a separate form that deals exclusively with making decisions regarding your health care and health care benefits after you become incapacitated.
What do I need to know about giving someone power of attorney in Indiana?
You should know that you are giving up a certain amount of control over your property or affairs when you sign away your power of attorney. While you are competent to do so, you must be careful when giving someone power of attorney to ensure that it doesn’t cause you to lose control of the assets you intended to manage after you executed the document.
Does giving power of attorney give away my rights to property?
No, power of attorney only temporarily gives the right to manage property to someone else. It does not change your underlying rights or assets. If you are managing the assets yourself, your full rights to the property remain intact, even when you grant a power of attorney.