HEALTH CARE POWER OF ATTORNEY AND ADVANCE HEALTH CARE DIRECTIVE
(State of Alaska)
This template is drafted for immediate attorney review and customization. All bracketed items must be tailored to the specific client matter.
[// GUIDANCE: This document is intended to comply with the Alaska Uniform Health Care Decisions Act, Alaska Stat. § 13.52.010 et seq., and incorporates HIPAA-compliant authorization language under 45 C.F.R. Parts 160 & 164. Alaska law permits either two (2) qualified witnesses or a notary public acknowledgment; select the execution method that best suits the client’s circumstances.]
TABLE OF CONTENTS
- DOCUMENT HEADER
- DEFINITIONS
- OPERATIVE PROVISIONS
- REPRESENTATIONS & WARRANTIES
- COVENANTS & RESTRICTIONS
- DEFAULT & REMEDIES
- RISK ALLOCATION
- DISPUTE RESOLUTION
- GENERAL PROVISIONS
- EXECUTION BLOCK
1. DOCUMENT HEADER
1.1 Title. Health Care Power of Attorney and Advance Health Care Directive (the “Agreement”).
1.2 Parties.
(a) Principal: [PRINCIPAL LEGAL NAME], of [PRINCIPAL ADDRESS] (the “Principal”).
(b) Agent: [PRIMARY AGENT LEGAL NAME], of [AGENT ADDRESS] (the “Agent”).
(c) Successor Agent(s): [SUCCESSOR AGENT NAME(S)] (each, a “Successor Agent”).
1.3 Effective Date. This Agreement is effective as of [EFFECTIVE DATE] (the “Effective Date”).
1.4 Jurisdiction. This Agreement is governed by the laws of the State of Alaska, including Alaska Stat. § 13.52.010 et seq. (collectively, “State Health-Care Law”).
1.5 Recitals.
A. The Principal desires to appoint an agent to make health-care decisions on the Principal’s behalf if the Principal is unable to make or communicate those decisions.
B. The Principal intends this document to constitute (i) a durable power of attorney for health care, (ii) a written advance health-care directive containing end-of-life instructions, and (iii) a HIPAA authorization, all pursuant to applicable State Health-Care Law.
C. Consideration for this Agreement is acknowledged to be the mutual promises herein.
2. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings set forth below. All capitalized terms used but not defined shall have the meanings assigned by State Health-Care Law.
“Advance Directive” means the written statement of the Principal’s treatment preferences set forth in Section 3.4.
“Capacity” means the ability to understand the significant benefits, risks, and alternatives to proposed health-care decisions and to make and communicate a health-care decision, as determined under Alaska Stat. § 13.52.010(5).
“Good Faith” means honesty in fact in the conduct of the transaction concerned.
“Health-Care Decision” has the meaning assigned in Alaska Stat. § 13.52.010(7).
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations at 45 C.F.R. Parts 160 & 164.
“Principal” has the meaning given in Section 1.2(a).
“Provider” means any individual or entity licensed, certified, or otherwise authorized to administer health care or medical treatment.
3. OPERATIVE PROVISIONS
3.1 Appointment of Agent. The Principal hereby appoints the Agent as the Principal’s true and lawful attorney-in-fact for all Health-Care Decisions, subject to the terms of this Agreement.
3.2 Authority Granted.
(a) Scope. The Agent may make any Health-Care Decision the Principal could make if having Capacity, including, without limitation, the authority to:
i. give, refuse, or withdraw informed consent to any health-care service;
ii. employ or discharge Providers;
iii. admit or discharge the Principal from any hospital, nursing home, or other facility;
iv. access, receive, and disclose medical records, including electronically stored information, consistent with Section 3.5 (HIPAA Authorization); and
v. sign and deliver all instruments, releases, and other documents relating to Health-Care Decisions.
(b) Limitations. The Agent’s authority is subject to the express instructions in Section 3.4 and any additional limitations stated herein.
3.3 Successor Agents. If the Agent is unwilling, unable, or legally disqualified to serve, authority shall pass to the Successor Agent(s) in the order listed in Section 1.2(c). Each Successor Agent shall have all powers granted to the Agent unless expressly limited.
3.4 End-of-Life Provisions.
(a) Life-Sustaining Treatment. [SELECT ONE:]
☐ (1) If I am diagnosed with a terminal condition and lack Capacity, I direct that life-sustaining treatment be withheld or withdrawn.
☐ (2) If I am diagnosed with a terminal condition and lack Capacity, I direct that life-sustaining treatment continue to the fullest extent possible.
☐ (3) I defer the decision regarding life-sustaining treatment to my Agent, who shall decide in accordance with my known values and best interests.
[// GUIDANCE: Insert any additional instructions regarding feeding tubes, hydration, pain management, resuscitation orders (DNR/DNI), organ donation, etc.]
(b) Palliative Care. The Principal directs that adequate pain relief be provided even if it may hasten death, consistent with professional standards.
(c) Pregnancy Consideration. [INSERT instructions if the Principal may be pregnant at the relevant time, as required under Alaska law.]
3.5 HIPAA Authorization. Pursuant to 45 C.F.R. § 164.508, the Principal expressly authorizes any Provider, health-plan administrator, or other covered entity to disclose to the Agent or Successor Agent any of the Principal’s “protected health information,” including mental-health and substance-use records, for the purpose of carrying out Health-Care Decisions. This authorization is effective immediately and shall survive the Principal’s death to the extent necessary to carry out post-mortem decisions (e.g., autopsy, organ donation).
3.6 Nomination of Guardian. Should a court determine the appointment of a guardian or conservator necessary, the Principal nominates the Agent, in the order designated, to serve in that capacity.
3.7 Effectiveness; Durability. This power of attorney is durable and becomes effective upon (a) the Principal’s loss of Capacity as determined under Alaska Stat. § 13.52.065, or (b) immediately, if the Principal has so indicated by initialing here: [_____]. It remains in effect until revoked or terminated under Section 3.8.
3.8 Revocation. The Principal may revoke this Agreement in any manner recognized under Alaska Stat. § 13.52.080. Revocation is effective upon communication to the Agent or relevant Provider.
4. REPRESENTATIONS & WARRANTIES
4.1 Principal Representations. The Principal represents that:
(a) the Principal is at least eighteen (18) years of age and of sound mind;
(b) the Principal understands the nature and effect of this Agreement; and
(c) no undue influence or duress has been exerted upon the Principal.
4.2 Agent Representations. The Agent represents that:
(a) the Agent is legally competent to serve and is not disqualified under Alaska Stat. § 13.52.030;
(b) the Agent will act in Good Faith, consistent with the Principal’s known wishes and best interests; and
(c) the Agent accepts the appointment and duties herein.
4.3 Survival. The representations and warranties in this Section survive acceptance and remain in effect throughout the term of the Agency.
5. COVENANTS & RESTRICTIONS
5.1 Agent Duties. The Agent shall:
(a) act in accordance with the Principal’s individual instructions and known values;
(b) consult with appropriate medical personnel and with the Principal’s family when feasible;
(c) maintain the confidentiality of the Principal’s protected health information except as authorized herein; and
(d) keep reasonable records of significant Health-Care Decisions.
5.2 Prohibited Acts. The Agent shall not:
(a) make or revoke the Principal’s will;
(b) act in a manner that creates a conflict of interest not reasonably believed to be in the Principal’s best interest; nor
(c) receive any financial remuneration for acting as Agent other than reimbursement of reasonable expenses, unless expressly authorized here: [_____].
5.3 Notices. The Agent shall give prompt written notice to the Principal, if capable, and to any Successor Agent upon resignation or inability to serve.
6. DEFAULT & REMEDIES
6.1 Events of Removal. The Agent may be removed by:
(a) written revocation executed by the Principal;
(b) court order under State Health-Care Law; or
(c) the occurrence of any disqualifying event under Alaska Stat. § 13.52.030.
6.2 Cure Period. Unless immediate harm would result, any interested person may petition the state probate court for removal after providing the Agent ten (10) days’ written notice and opportunity to respond.
6.3 Injunctive Relief. Because Health-Care Decisions are unique and time-sensitive, the parties acknowledge that specific performance and injunctive relief (collectively, “Healthcare Directive Relief”) are appropriate remedies to enforce or prevent violation of this Agreement.
6.4 Attorney Fees & Costs. In any proceeding arising under this Agreement, the prevailing party is entitled to reasonable attorney fees and costs as determined by the court.
7. RISK ALLOCATION
7.1 Indemnification. The Principal shall indemnify and hold harmless the Agent and any Successor Agent from liability for actions taken in Good Faith pursuant to this Agreement, except for willful misconduct or gross negligence.
7.2 Limitation of Liability. In no event shall the Agent be liable for consequential, indirect, or punitive damages arising from Good-Faith Health-Care Decisions.
7.3 Insurance. [OPTIONAL: Insert any requirement that the Principal obtain liability insurance for the Agent if desired.]
7.4 Force Majeure. The Agent shall not be deemed in default for failure or delay in acting when such failure or delay is caused by events beyond the Agent’s reasonable control, including unavailability of medical facilities or Providers.
8. DISPUTE RESOLUTION
8.1 Governing Law. This Agreement and all disputes hereunder are governed by the laws of the State of Alaska, without regard to its conflict-of-laws principles.
8.2 Forum Selection. The parties consent to the exclusive jurisdiction of the [COUNTY] Probate Court of the State of Alaska for all proceedings arising out of or relating to this Agreement.
8.3 Arbitration & Jury Waiver. Consistent with the Generation Instructions, arbitration and jury trial waivers are deliberately not provided herein.
8.4 Preservation of Injunctive Relief. Nothing in this Section shall limit a party’s right to seek Healthcare Directive Relief under Section 6.3.
9. GENERAL PROVISIONS
9.1 Amendment & Waiver. This Agreement may be amended only by a written instrument executed by the Principal in accordance with State Health-Care Law. Waiver of any provision must be in writing and shall not constitute waiver of any other provision.
9.2 Assignment. Neither the Agent nor the Successor Agent may delegate authority except as expressly permitted by State Health-Care Law.
9.3 Successors & Assigns. This Agreement is binding upon and inures to the benefit of the Principal, the Agent, each Successor Agent, and their respective heirs, legal representatives, and permitted assigns.
9.4 Severability. If any provision is held invalid or unenforceable, such invalidity shall not affect other provisions, which shall be given effect without the invalid provision.
9.5 Integration. This document constitutes the entire understanding of the parties regarding Health-Care Decisions and supersedes all prior directives or powers of attorney for health care executed by the Principal.
9.6 Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts and by electronic signature, each of which is deemed an original and all of which constitute one instrument.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the Principal has executed this Health Care Power of Attorney and Advance Health Care Directive as of the Effective Date first written above.
Principal
[PRINCIPAL LEGAL NAME], Principal
Date: ________
Acceptance by Agent
I, [PRIMARY AGENT LEGAL NAME], accept the appointment as Agent and agree to perform the duties herein.
[PRIMARY AGENT LEGAL NAME], Agent
Date: ________
Acceptance by Successor Agent(s) (optional)
[SUCCESSOR AGENT NAME]
Date: ________
NOTARIZATION (optional in lieu of witnesses)
State of Alaska )
) ss.
[COUNTY] Judicial District )
On this __ day of __, 20__, before me, the undersigned Notary Public, personally appeared [PRINCIPAL LEGAL NAME], known to me or satisfactorily proven to be the person whose name is subscribed to the foregoing instrument and acknowledged that he/she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public in and for Alaska
My commission expires: ____
WITNESS ATTESTATION (required if not notarized)
We, the undersigned witnesses, declare that the Principal is personally known to us, appeared to be of sound mind, and under no duress, fraud, or undue influence. The Principal signed or acknowledged this document in our presence, and we sign as witnesses in the presence of the Principal and each other.
-
Name: _____
Address: ____
Date: _________ -
Name: _____
Address: ____
Date: _________
[// GUIDANCE: Witnesses must be competent adults and may not be the Agent, Successor Agent, a health-care provider currently serving the Principal, or an employee of a health-care provider unless related by blood, marriage, or adoption, per Alaska Stat. § 13.52.010(11).]
END OF DOCUMENT