Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Detailed Answer
Under Hawaii law, family members and heirs can protect elderly individuals by establishing formal decision-making authority. Two common routes include powers of attorney and court-ordered guardianship or conservatorship.
Durable Power of Attorney
A durable power of attorney allows an elderly heir (the principal) to appoint an agent to handle financial decisions. Under the Uniform Power of Attorney Act (HRS Chapter 551A), the agent’s authority can include managing bank accounts, paying bills, and selling property. The power persists even if the principal becomes incapacitated. To create a valid power of attorney, the principal must be 18 years or older and sign the document in the presence of a notary public or two witnesses. See HRS §551A-101 and HRS §551A-201.
Advance Health Care Directive
An advance health care directive lets the principal designate a health care agent to make medical decisions if they cannot. It is governed by HRS Chapter 327E. This document can cover consent to or refusal of treatment, admission to long-term care, and end-of-life care preferences. A valid directive requires the principal’s signature and two witnesses (one cannot be a relative or health care provider). See HRS §327E-3.
Guardianship and Conservatorship
If an elderly heir lacks capacity and has not appointed agents, interested parties can petition the Family Court for guardianship (for personal decisions) and conservatorship (for financial decisions). The court assesses the individual’s incapacity, best interests, and the suitability of the proposed guardian. Guardians may make decisions about health care, residence, and personal needs, while conservators manage assets. These proceedings follow HRS Chapter 560. See HRS §560:1-101 and HRS §560:5-202.
Temporary Guardianship
In emergencies, the court can appoint a temporary guardian or conservator to act quickly. A temporary order can be granted before a full hearing, valid for up to 90 days. This option protects assets or personal welfare when imminent harm is likely. See HRS §560:5-206.
Helpful Hints
- Discuss options early: Encourage the elderly heir to plan before capacity issues arise.
- Choose trustworthy agents: Authority comes with responsibility; select agents with the heir’s best interests.
- Keep documents updated: Review powers of attorney and directives every few years or after major life changes.
- Consult a qualified attorney: A lawyer can ensure documents comply with Hawaii law and accurately reflect the heir’s wishes.
- Understand court fees: Guardianship proceedings involve filing fees and may require court-appointed guardians ad litem.