Living will requirements in Indiana

Which document this is

Indiana’s current route is the advance directive under the Health Care Advance Directives chapter, Ind. Code § 16-36-7, added by P.L.50-2021. One advance directive can do both jobs at once: it can designate one or more health care representatives to make health care decisions for you and receive your health information, and it can state your own decisions and your preferences about life prolonging procedures, palliative care and comfort care.

Indiana’s older Living Will Declaration is still live law. Ind. Code § 16-36-4 remains in the code, was amended in 2023, and prints two mirror-image forms: the Living Will Declaration, for someone who wants life prolonging procedures withheld once a terminal condition is diagnosed, and the Life Prolonging Procedures Declaration, for someone who wants that treatment given. A declaration has to be substantially in one of those two forms, though you may add specific directions of your own. The 2021 chapter folds the living will declaration in by name: an advance directive can include one.

This is what Myend’s Healthcare Directive prepares for Indiana: one advance directive carrying your representative and your treatment wishes together, ready for the signing described below.

Who can make an advance directive in Indiana

You have to be a competent adult. Under the 2021 chapter, a declarant is defined as a competent adult who has executed an advance directive, and the representatives you designate must be competent adults too. The older declarations are explicit about the number: a person who is of sound mind and at least 18 may execute a Living Will Declaration or a Life Prolonging Procedures Declaration, and the witnesses to a declaration have to be at least 18 as well.

Competent is a practical standard rather than a diagnosis. Indiana presumes you can make your own health care decisions unless someone determines otherwise.

Signing it so it counts

Indiana’s two instruments carry two signing rules. They overlap without being identical, so read each on its own terms.

The advance directive

1. 1You sign

   You sign the advance directive in the presence of two adult witnesses, or in the presence of a notarial officer. If you cannot sign it yourself, another adult may sign your name at your specific direction and in your presence, in front of those same witnesses or that notarial officer.

2. 2Two witnesses, or a notarial officer

   Either two adult witnesses sign in your presence, at least one of whom may not be your spouse or other relative, or you sign or acknowledge the document in front of a notarial officer who completes and signs a notarial certificate that becomes part of the directive. Extra witness signatures, or a notarial certificate you did not need, do not spoil it.

3. 3Who cannot fill two roles

   Whoever signs your name for you cannot also be a witness, the notarial officer, or a health care representative designated in the directive.

The Living Will Declaration

A declaration under Ind. Code § 16-36-4 has to be voluntary, in writing, dated, and signed by you or by another person in your presence and at your express direction, and it has to be signed in the presence of at least two competent witnesses who are at least 18, or a notary public. A witness to a living will declaration cannot be the person who signed it on your behalf, your parent, spouse or child, anyone entitled to any part of your estate whether you die with a will or without one, or anyone directly financially responsible for your medical care. Being named in your will as personal representative, or as the attorney for the estate, does not by itself put someone in that estate category.

If your document carries both a living will declaration and the designation of a representative, the safe course is the ceremony that satisfies both chapters: two adult witnesses, none of them your spouse, parent or child, entitled to any part of your estate, or directly financially responsible for your medical care.

Naming your representative

Indiana calls the person you choose your health care representative, and it defines the role affirmatively rather than by exclusion: a competent adult, or other person, that you designate in an advance directive to make health care decisions and to receive health information. You may name more than one, set an order of priority among them, require them to act jointly or by majority, or let them act independently.

Indiana’s actual eligibility bars sit somewhere else, on the default proxy, the decision-maker a provider turns to when you named nobody. A proxy cannot be someone you specifically disqualified in your directive, a spouse who is legally separated from you or has a pending dissolution, legal separation or annulment, someone under a court order to avoid contact with you, or someone facing a pending criminal charge in which you are the alleged victim. The legislature put that list in the same chapter and confined it to the proxy, which is why it does not reach the representative you choose. You may also name individuals your directive disqualifies from being your representative, from acting as your proxy, or from receiving delegated authority.

Once the authority is in effect, your representative may make all health care decisions for you unless your directive limits them, subject to your own right to decide for yourself whenever you have capacity. Unless your directive says otherwise, a representative named in it may also delegate some or all of that authority in writing to another competent adult, signed with the same formality as the directive itself.

When it takes effect

Indiana’s default is worth reading twice. Unless your advance directive states a delayed effective date or a future triggering event, it is effective immediately on signing and witnessing or acknowledgment. That does not hand your representative control of you: while you have capacity, your own decisions supersede anything your representative decides or could decide, and you can rescind a representative’s decision at any time.

You can write in a later start. Your directive may delay an instruction, or a representative’s authority, until a stated date or a specifically defined event. If it says the authority begins on your future incapacity but does not say how incapacity is decided, the authority starts on a written determination by a physician, licensed psychologist or judge. If it says the authority applies only while you are incapacitated, it starts when a determination of incapacity is noted in your medical record and goes inactive again when you recover.

The living will declaration has its own trigger. Your attending physician certifies in writing that you are a qualified patient once the physician has diagnosed you with a terminal condition as the statute defines it and you executed the declaration in accordance with that chapter while of sound mind. The certificate goes into your medical record.

If you are pregnant

Once your attending physician diagnoses you as pregnant, Indiana law sets your Living Will Declaration aside for the rest of the pregnancy. The rule carries no viability test and no gestational-age condition. It runs for the whole pregnancy, not part of it. The exact wording is in the sources list below.

The rule is written about the living will declaration, so it reaches an advance directive that carries one. The 2021 Health Care Advance Directives chapter contains no pregnancy provision of its own, and it says nothing about treatment instructions written outside a living will declaration.

Changing or cancelling it

Indiana names the routes rather than leaving it to good practice, and the two instruments differ.

You revoke an advance directive by signing another one the same way you signed the first, by signing a document that says you are revoking it and meets any extra conditions your own directive imposed, or by saying so in the direct physical presence of a health care provider. Amending or restating it takes the same formality. Whatever your document says to the contrary, as long as nobody has determined you incapacitated you always keep the right to revoke a health care decision or a statement of your preferences out loud.

Two consequences follow. Until your representative or a provider has actual knowledge of a valid revocation, their decisions still bind you, so telling people is part of revoking. And unless a later advance directive says otherwise, the last one you signed supersedes and revokes the earlier ones.

A declaration under the older chapter is revoked by a signed, dated writing, by physically cancelling or destroying it yourself or having someone do it in your presence at your direction, or by an oral expression of intent to revoke. That revocation takes effect when it is communicated to your attending physician, and nobody is liable for acting on a declaration without actual knowledge that it was revoked.

Making sure it is found

Indiana puts some of this in the statute. A complete copy of the signed and witnessed or notarized advance directive has to go to each representative named in it whose authority is immediately effective. While you have capacity, giving a copy to your health care provider is your job; if you have signed one but lost capacity, your representative or any other interested person gives the provider a copy, and the provider puts it in your medical record. A viewable and printable copy generated from an original electronic record is as good as the original.

Indiana’s state department maintains a list of resources and sample forms on its website, and the statute says plainly that no form, official or otherwise, is required for a valid advance directive. There is no statewide registry in Indiana’s health care consent, living will, POST or advance directive chapters.

Indiana also recognizes what you signed elsewhere. A writing you signed while living in or physically located in another state, doing what an Indiana advance directive does, is treated as a valid Indiana advance directive if you had capacity and it was signed and witnessed or acknowledged either the Indiana way or in a way that complies with the law where you were.

This is not a POST

Indiana’s clinician-signed program is the Physician Order for Scope of Treatment, or POST, set up in its own chapter of the same article. A POST form is completed with a clinician by someone who already has an advanced chronic progressive illness or frailty, or a condition from which there can be no recovery, and it becomes a standing medical order meant to travel with that person between hospital, nursing facility and home. Your advance directive is the opposite in timing: you complete it in advance, with no clinician’s signature on it. Myend prepares the personal advance directive and cannot produce a POST form, because that has to come from your own treating clinician.

What is different about Indiana

Indiana closed two of its own paperwork routes on a fixed date, then opened the signing itself to a video call.

Most states leave their older instruments quietly alive. Indiana set deadlines instead, closing the Health Care Consent Act appointment and the health care power of attorney to anything signed after 2022, and voiding the health care powers in a general power of attorney signed later. The living will declaration was left alone, and amended in 2023 rather than repealed.

The second unusual thing is how Indiana lets you sign. Presence, for an advance directive, is satisfied when you and your witnesses interact in real time through audiovisual technology, not only when you are in the same room, and a remote online or electronic notarization counts. Where a physical impairment or physical isolation makes video impossible or impractical, a telephone call carries the signing, and the burden falls on whoever later disputes it.

Third, Indiana draws an unusually clean line between the representative you choose and the proxy it falls back to. Nothing bars any category of person from being your own representative; the bars belong to the fallback proxy alone.

Common questions

Sources and review