In a prior blog post, I reviewed what a power of attorney is and the types of power of attorney that are available depending on the situation. In April 2014, the Hawaii legislature passed the Hawaii Uniform Power of Attorney Act, which was codified in Hawaii Revised Statutes Chapter 551E. This new section replaces Hawaii Revised Statutes Chapter 551D, the Hawaii Uniform Durable Power of Attorney Act. Here are some highlights from the Hawaii Uniform Power of Attorney Act:
1. A power of attorney is now considered "durable" unless otherwise specified. In other words, it is effective even after the principal may be incapacitated.
2. An issue under the Hawaii Uniform Durable Power of Attorney Act was that a person who was presented with a power of attorney did not have to accept the power of attorney. Under the Hawaii Uniform Power of Attorney Act, a person who is presented with a power of attorney may ask that the agent certify "any factual matter concerning the principal, agent, or power of attorney". If an agent refuses a request for a certification, the person presented with the power of attorney may decline to accept the document. However, if a power of attorney presented with a certification is still refused, the agent may seek a court order mandating acceptance of the power of attorney. This change provides another layer of protection for the person being presented with the power of attorney while also giving the agent recourse if a certified power of attorney is still not accepted.
3. Chapter 551D does not govern power of attorney for healthcare decisions. Those fall under Advance Health Care Directives. They also do not cover power of attorney for parents or legal guardians of a minor or disabled adult under another person.
Samuel K.L. Suen is an attorney based in Honolulu, Hawaii specializing in estate planning, probate, conservatorship and guardianship matters.
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