Estate planning refers to a series of decisions that a person is empowered to make under Indiana law prior to death. Many factors can affect a person’s estate plan, including the amount and kind of assets owned by the person, the number of living children or children of deceased children, estate and income taxes and any special circumstances that the person executing the documents wishes to use to dispose of particular assets. Another factor that has affected estate planning decisions in Indiana and other states during the last two decades is the advancement in medical care that can keep a person’s organs functioning even if the person lacks mental or physical capacity.
This advance in medical technology has led to the development of many new estate planning tools. One of the most useful such tools is the durable power of attorney. Because a person may lose the physical and mental capacity to make rational decisions about the care or disposition of their assets, the person can appoint a person to make these decisions in lieu of the owner of the assets. A durable power of attorney must be in writing, signed by the person who is making the decisions and takes effect when the maker becomes unable to make these decisions. The powers granted in a durable power of attorney become effective when the giver of the power becomes incapable of consenting to the exercise of one or more powers granted to the attorney.
A durable power of attorney can be revoked at any time, so long as the maker of the power is mentally able to make such a decision. The maker must give oral or written notice of the revocation to his or her health care provider. Because of the complexity of medical decisions, Indiana law expressly grants criminal and civil immunity from professional liability for any health care provided when a professional relies in good faith on a properly executed durable power of attorney.