§ 16-36-7-28 — Advance directive; signature; witnesses; acknowledgement; counterparts; telephonic interaction; validity

(a) An advance directive signed by or for a
declarant under this section may accomplish or communicate one (1)
or more of the following:
(1) Designate one (1) or more competent adult individuals or
other persons as a health care representative to make health care
decisions for the declarant or receive health information on behalf
of the declarant, or both.
(2) State specific health care decisions by the declarant.
(3) State the declarant's preferences or desires regarding the
provision, continuation, termination, or refusal of life prolonging
procedures, palliative care, comfort care, or assistance with
activities of daily living.
(4) Specifically disqualify one (1) or more named individuals
from:
(A) being appointed as a health care representative for the
declarant;
(B) acting as a proxy for the declarant under section 42 of this
chapter; or
(C) receiving and exercising delegated authority from the
declarant's health care representative.
(b) An advance directive under this section must be signed by or for
the declarant using one (1) of the following methods:
(1) Signed by the declarant in the presence of two (2) adult
witnesses or in the presence of a notarial officer.
(2) Signing of the declarant's name by another adult individual at
the specific direction of the declarant, in the declarant's presence,
and in the presence of the two (2) adult witnesses or a notarial
officer. However, an individual who signs the declarant's name on
the advance directive may not be a witness, the notarial officer, or
a health care representative designated in the advance directive.
(c) An advance directive signed under this section must be
witnessed or acknowledged in one (1) of the following ways:
(1) Signed in the declarant's presence by two (2) adult witnesses,
at least one (1) of whom may not be the spouse or other relative
of the declarant.
(2) Signed or acknowledged by the declarant in the presence of a
notarial officer, who completes and signs a notarial certificate
under IC 33-42-9-12 and makes it a part of the advance directive.
If the advance directive complies with either subdivision (1) or (2), but
contains additional witness signatures or a notarial certificate that is not
needed, the advance directive is still validly witnessed and
acknowledged. A remote online notarization or electronic notarization
of an advance directive that complies with IC 33-42-17 complies with
subdivision (2).
(d) A competent declarant and the witnesses or a notarial officer
may complete and sign an advance directive in two (2) or more
counterparts in tangible paper form, with the declarant's signature
placed on one (1) original counterpart and with the signatures of the
witnesses, if any, or the notarial officer's signature and certificate on
one (1) or more different counterparts in tangible paper form, so long
as the declarant and the witnesses or notarial officer comply with the
presence requirement as described in section 19 of this chapter, and so
long as the text of the advance directive states that it is being signed in
separate paper counterparts. If an advance directive is signed in
counterparts under this subsection:
(1) the declarant;
(2) a health care representative who is designated in the advance
directive;
(3) a person who supervised the signing of the advance directive
in that person's presence; or
(4) any other person who was present during the signing of the
advance directive;
must combine all of the separately signed paper counterparts of the
advance directive into a single composite document that contains the
text of the advance directive, the signature of the declarant, and the
signatures of the witnesses, if any, or the notarial officer. The person
who combines the separately signed counterparts into a single
composite document must do so not later than ten (10) business days
after the person receives all of the separately signed paper counterparts.
Any scanned copy, photocopy, or other accurate copy of the composite
document that contains the complete text of the advance directive and
all signatures will be treated as validly signed under this section. The
person who creates the signed composite document under this
subsection may include information about compliance within this
subsection in an optional affidavit that is signed under section 41 of
this chapter.
(e) If facts and circumstances, including physical impairments or
physical isolation of a competent declarant, make it impossible or
impractical for the declarant to use audiovisual technology to interact
with the two (2) witnesses and to satisfy the presence requirement
under section 19 of this chapter, the declarant and the witnesses may
use telephonic interaction throughout the signing process. A potential
witness cannot be compelled to use telephonic interaction alone to
accomplish the signing of an advance directive under this section. A
declarant and a notarial officer may not use telephonic interaction to
accomplish the signing of an advance directive or other document
under this chapter.
(f) If an advance directive is signed under subsection (e), the
witnesses must be able to positively identify the declarant by receiving
accurate answers from the declarant that:
(1) authenticate the identity of the declarant; and
(2) establish the capacity and sound mind of the declarant to the
satisfaction of the witness.
(g) The text of the advance directive signed under subsection (e)
must state that the declarant and the witnesses used telephonic
interaction throughout the signing process to satisfy the presence
requirement.
(h) An advance directive signed under subsection (e) is presumed
to be valid if it recites that the declarant and the witnesses signed the
advance directive in compliance with Indiana law.
(i) A health care provider or other person who disputes the validity
of an advance directive signed under subsection (e) has the burden of
proving the invalidity of the advance directive or noncompliance with
subsection (e) by a reasonable preponderance of the evidence.
(j) If a declarant resides in or is located in a jurisdiction other than
Indiana at the time when the declarant signs a writing that
communicates the information described in subsection (a), the writing
must be treated as a validly signed advance directive under this chapter
if the declarant was not incapacitated at the time of signing and if the
writing was:
(1) signed and witnessed or acknowledged in a manner that
complies with subsections (b) and (c); or
(2) signed in a manner that complies with the applicable law of
the jurisdiction in which the declarant was residing or was
physically located at the time of signing.

Legislative History

As added by P.L.50-2021, SEC.63. Amended by P.L.199-2021, SEC.9.