DURABLE POWER OF ATTORNEY FOR HEALTH CARE

District of Columbia

[// GUIDANCE: This template is drafted to comply with the District of Columbia Uniform Health-Care Decisions Act (D.C. Code § 21-2201 et seq.) and applicable federal privacy regulations under 45 C.F.R. Parts 160 & 164 (“HIPAA”). Practitioners must confirm that no more recent statutory amendments affect enforceability before use.]

TABLE OF CONTENTS

I. Document Header
II. Definitions
III. Operative Provisions
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block
Appendix A – HIPAA Authorization
Appendix B – End-of-Life Instructions (Optional)

I. DOCUMENT HEADER

1. Title. Durable Power of Attorney for Health Care (the “Instrument”).
2. Effective Date. This Instrument becomes effective on the earlier of (a) the date of execution below; or (b) the date on which [PRINCIPAL NAME] (“Principal”) is determined to lack capacity pursuant to D.C. Code § 21-2204(c).
3. Parties.
   a. Principal: [INSERT LEGAL NAME, ADDRESS, PHONE].
   b. Primary Agent: [INSERT LEGAL NAME, ADDRESS, PHONE] (the “Agent”).
   c. 1st Successor Agent (if any): [NAME].
   d. 2nd Successor Agent (if any): [NAME].
4. Jurisdiction. Governed by the laws of the District of Columbia (“Governing Law”).
5. Consideration & Intent. Principal executes this Instrument to designate an Agent to make health-care decisions when Principal is unable, pursuant to D.C. Code § 21-2207.

II. DEFINITIONS

For ease of reference, capitalized terms are defined alphabetically below.

“Advance Directive” – This Instrument and any contemporaneous or subsequent written health-care instructions executed by Principal.

“Agent” – The individual(s) appointed in Section I(3), including any Successor Agent that assumes authority.

“Capacity” – The ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health-care decision, as determined under D.C. Code § 21-2204.

“Health Care” – Any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect Principal’s physical or mental condition.

“HIPAA” – The Health Insurance Portability and Accountability Act of 1996 and its privacy regulations at 45 C.F.R. Parts 160 & 164.

“Incapacitated” – Lacking Capacity, as certified in writing by Principal’s attending physician or other qualified health-care professional.

“Principal” – The individual granting authority under this Instrument identified in Section I(3)(a).

“Successor Agent” – Any individual designated under Section I(3)(c)–(d) who may act upon the resignation, death, incapacity, or refusal to act of the Primary Agent.

III. OPERATIVE PROVISIONS

3.1 Grant of Authority.
a. Upon the determination that Principal is Incapacitated, Agent is authorized to make all Health-Care decisions that Principal could make if able, consistent with D.C. Code § 21-2207(a).
b. Authority includes, but is not limited to:
i. Consent, refuse, or withdraw consent to any treatment, diagnostic procedure, medication, or life-sustaining intervention;
ii. Admit or discharge Principal to or from any hospital, hospice, nursing home, or similar facility;
iii. Obtain, review, and disclose medical records (subject to the HIPAA Authorization in Appendix A);
iv. Employ or discharge health-care providers;
v. Authorize pain relief measures, even if they may hasten death;
vi. Make decisions regarding organ donation, autopsy, and disposition of remains, unless otherwise indicated by Principal.

[// GUIDANCE: Insert any specific limitations here, e.g., “Agent shall not consent to electroconvulsive therapy.”]

3.2 End-of-Life Provisions.
a. Principal’s express wishes regarding life-sustaining treatment, artificial nutrition, hydration, and resuscitation are stated in Appendix B and incorporated herein.
b. Agent shall honor such instructions and, where ambiguous, interpret them in good faith consistent with Principal’s values.

3.3 HIPAA Compliance. Agent shall be deemed Principal’s “personal representative” under 45 C.F.R. § 164.502(g) with full authority to receive protected health information.

3.4 Conditional Effect. If Principal regains Capacity, Agent’s authority is suspended until Principal again becomes Incapacitated.

3.5 Duration. This Instrument is durable and shall not be affected by Principal’s subsequent incapacity, except as expressly revoked pursuant to Section IX(1).

IV. REPRESENTATIONS & WARRANTIES

4.1 Principal’s Representations.
a. Principal is at least 18 years of age and of sound mind.
b. Execution of this Instrument is voluntary and not the result of undue influence.

4.2 Agent’s Representations.
a. Agent is at least 18 years of age and willing to serve.
b. Agent is not presently subject to any order of a court of competent jurisdiction declaring incapacity.

4.3 Survival. The representations in this Article survive revocation or termination of the Agent’s authority to the extent necessary to enforce rights arising hereunder.

V. COVENANTS & RESTRICTIONS

5.1 Fiduciary Duties. Agent shall:
a. Act in good faith, within the scope of authority granted;
b. Consult, to the extent feasible, with Principal’s physicians and family;
c. Follow Principal’s known wishes; or, if unknown, act in Principal’s best interest under D.C. Code § 21-2210(b).

5.2 Record-Keeping. Upon request of the D.C. Probate Court, Agent shall provide a written report of actions taken under this Instrument.

5.3 Conflicts of Interest. Agent shall avoid self-dealing and disclose any potential conflicts to Successor Agent(s) and interested family members.

5.4 Notice of Inability to Act. Agent shall promptly notify Principal and Successor Agent(s) in writing upon resignation or inability to continue serving.

VI. DEFAULT & REMEDIES

6.1 Events of Default. The following constitute “Events of Default”:
a. Agent’s breach of fiduciary duty, gross negligence, or willful misconduct;
b. Revocation of Agent’s authority by Principal or the D.C. Probate Court;
c. Agent’s death, incapacity, or resignation without acceptance by a Successor Agent.

6.2 Cure Period. Upon written notice by an interested party alleging an Event of Default, Agent shall have ten (10) business days to cure, unless the alleged breach poses an imminent risk of substantial harm.

6.3 Remedies.
a. Injunctive Relief. The D.C. Probate Court may enjoin Agent’s actions and appoint a guardian ad litem.
b. Removal. Court-ordered removal of the Agent and appointment of Successor Agent or guardian.
c. Fees & Costs. A breaching Agent shall be liable for reasonable attorneys’ fees and costs incurred to enforce this Instrument.

VII. RISK ALLOCATION

7.1 Indemnification of Agent. Principal agrees to indemnify and hold Agent harmless from any liability, expense, or loss arising from good-faith acts or omissions within the scope of authority granted, except to the extent resulting from Agent’s gross negligence or willful misconduct (“Good-Faith Standard”).

[// GUIDANCE: Consider adding professional liability insurance requirements where Agent is an institutional fiduciary.]

7.2 Limitation of Liability. No Agent shall be liable for monetary damages exceeding those directly attributable to acts outside the Good-Faith Standard.

7.3 Force Majeure. Agent shall not be liable for failure to act where prevented by events beyond reasonable control (e.g., natural disasters, war, or systemic failure of health-care infrastructure).

VIII. DISPUTE RESOLUTION

8.1 Governing Law. District of Columbia law governs all matters arising under this Instrument.

8.2 Forum Selection. Exclusive jurisdiction and venue lie in the Probate Division of the Superior Court of the District of Columbia.

8.3 Arbitration. Not applicable.

8.4 Jury Waiver. Not applicable.

8.5 Preservation of Injunctive Relief. Nothing herein limits the right of any interested person to seek emergency injunctive relief to enforce or enjoin actions under this Instrument.

IX. GENERAL PROVISIONS

1. Revocation & Amendment. Principal may revoke or amend this Instrument at any time by (a) a signed writing; or (b) physical destruction of all executed originals, subject to notification requirements under D.C. Code § 21-2212.

2. Copies. Photostatic or electronically stored copies of this Instrument shall have the same force as an original.

3. Assignment. Agent may not delegate authority except to a licensed health-care professional for treatment decisions requiring specialized knowledge, and only under Agent’s supervision.

4. Integration. This Instrument, together with any duly executed appendices, constitutes the entire Advance Directive of Principal and supersedes prior inconsistent directives.

5. Severability. Any invalid provision shall be severed, and the remainder shall be enforced to the maximum extent permitted by law.

6. Counterparts & Electronic Signatures. This Instrument may be executed in multiple counterparts, including via electronic signature compliant with the D.C. Uniform Electronic Transactions Act.

X. EXECUTION BLOCK

IN WITNESS WHEREOF, Principal and Agent have executed this Durable Power of Attorney for Health Care as of the Effective Date set forth above.

A. Principal

Signature of Principal

Printed Name: [PRINCIPAL NAME]
Date: [DATE]

B. Acceptance by Agent

I, the undersigned, accept the appointment as Agent and agree to act in accordance with the terms of this Instrument.

Signature of Agent

Printed Name: [AGENT NAME]
Date: [DATE]

C. Successor Agent(s) (Optional)

1. ---

   
   Signature of 1st Successor Agent

Printed Name: [NAME] Date: [DATE]

2. ---

   
   Signature of 2nd Successor Agent

Printed Name: [NAME] Date: [DATE]

D. Witness Attestation

We declare that the Principal is personally known to us, appears to be of sound mind, and under no duress, fraud, or undue influence. We are not the Agent, a successor Agent, or the supervising health-care provider of the Principal.

1. ______ Date: [DATE]
   Witness #1 Signature Printed Name & Address

2. ______ Date: [DATE]
   Witness #2 Signature Printed Name & Address

[// GUIDANCE: D.C. law requires at least two adult witnesses; notarization is optional but recommended to facilitate recognition across jurisdictions.]

E. Notarization (Optional but Recommended)

District of Columbia, ss:

Subscribed and sworn before me on this _ day of _, 20__, by [PRINCIPAL NAME].

Notary Public

My Commission Expires: __

APPENDIX A – HIPAA AUTHORIZATION

1. Designation. Pursuant to 45 C.F.R. § 164.508(c), Principal authorizes any covered entity to disclose to Agent all protected health information (“PHI”) relating to Principal.

2. Purpose. To allow Agent to make informed Health-Care decisions and to handle insurance and related administrative matters.

3. Scope. This authorization includes, without limitation, records regarding mental health, substance use, HIV/AIDS, and genetic testing, to the extent permitted by law.

4. Expiration. This authorization remains effective for the duration of Agent’s authority under this Instrument and terminates upon revocation thereof.

5. Redisclosure. PHI disclosed pursuant to this authorization may be subject to redisclosure and might no longer be protected by HIPAA, except as otherwise limited by applicable law.

APPENDIX B – END-OF-LIFE INSTRUCTIONS (Optional)

[// GUIDANCE: The following is an illustrative checklist. Counsel should tailor to client wishes and ensure internal consistency with Section III.]

1. Artificial Nutrition & Hydration
   [ ] I wish to receive [ ] I do NOT wish to receive

2. Cardiopulmonary Resuscitation (CPR)
   [ ] Full Code [ ] Do Not Resuscitate (DNR)

3. Mechanical Ventilation
   [ ] Trial period (____ days)
   [ ] No ventilation if prognosis is terminal or permanent unconsciousness

4. Pain Management
   [ ] Authorize all palliative measures, even if they may hasten death

5. Organ & Tissue Donation
   [ ] Donate any organs [ ] Donate the following: _____
   [ ] Do not donate

Principal Initials: _ Date: __

[// GUIDANCE: Practitioners should attach additional schedules (e.g., religious directives) as needed and review for conflicts between this Instrument and any existing wills, trusts, or pre-nuptial agreements.]