There are three estate planning documents that every competent adult living in the State of Hawai‘i should have. Of course, “competency” can be an elusive quality, but once a Hawai‘i resident has turned 18, the law of our State presumes that person to be competent. So if you have children or grandchildren getting ready to leave Hawai‘i for college in the fall — or even
if they are staying in the Islands for the indefinite future — and if they are at least 18 years of age, they should have in place a durable power of attorney, an advance health care directive, and a HIPAA authorization. (HIPAA refers to the Health Insurance Portability and Accountability Act of 1996.)

Durable power of attorney
A durable power of attorney gives authority to other people to deal with one’s assets. The person who signs the power of attorney is called the principal, and the person appointed to act on the principal’s behalf is called the agent. Under Hawai‘i law, an agent owes fiduciary duties to the principal, and the agent can get in big trouble for failing to carry out those duties. Without a power of attorney in place, it might be necessary to institute an involved court proceeding if a person is absent or incapacitated at a time when something must be done with the person’s assets. This might be the case if the person is in an accident and cannot access his or her funds to pay for care or for regular obligations, such as rent.

Advance health care directive
You would use an advance health care directive to give authority to other people to make health care decisions for you if you are unable to communicate those decisions for yourself. If, for example, you were unconscious and you needed surgery, who would sign the consent forms for you? If you have an advance health care directive in place, your hand-picked health care agent could sign on your behalf. Your health care agent could also make other decisions for you, including end-of-life decisions. Without an advance health care directive in place, decision-making for you could be tricky, and your family could be forced into court in order to have a judge appoint someone to make decisions for you.

HIPAA authorization
Finally, a HIPAA authorization gives medical providers permission to talk to a person’s duly-appointed health care agents and anyone else the person wants to be privy to his or her health information. This permission is critical for actual decision-makers, because without it, a doctor can refuse to divulge anything about the person for whom decisions need to be made. Not a great position for the decision-makers to be in. They would have authority to make decisions, but no access to the specific information upon which decisions would be based. The patient may also want to give medical providers permission to talk with family members or others who do not have a decision-making role, but who the patient might nevertheless want to keep in the loop in the event of a hospitalization.

Talk with your trusted advisers about getting these documents in place for yourself and your loved ones.

SCOTT MAKUAKANE, Counselor at Law
Focusing exclusively on estate planning and trust law.
808-587-8227 |