Power of attorney, health care directive and guardianship in Rhode Island

Financial power of attorney in Rhode Island

Law and official form

Law

Rhode Island Short Form Power of Attorney Act and powers of attorney rules in chapter 34-22

Uniform Power of Attorney Act

No

Official form

Statutory Short Form Power of Attorney (R.I. Gen. Laws 18-16-2)Published by Rhode Island General Assembly

You do not have to use it.

Using the short form is voluntary; any other form of power of attorney may be used. To count as a statutory short form, it must be in writing, contain the exact wording of clause 'First', include the warning notice in bold, and be acknowledged by you like a deed (before a notary). The form includes a signature line after the sentence 'This power of attorney shall not be affected by the subsequent incompetency of the donor.' If you name more than one agent, they must act jointly unless you write 'severally'.

Law: R.I. Gen. Laws §§ 18-16-1, 34-22-6.1; R.I. Gen. Laws §§ 18-16-1, 18-16-2

Signing rules

How to sign

Rhode Island law does not set general witness or notary rules for a power of attorney. A statutory short form power of attorney must be acknowledged by you in the way a real estate deed is acknowledged, which means before a notary public. A durable power of attorney must be in writing.

Who signs

Signed by you (the principal or 'donor').

Notary

Not required

Witnesses

None required

Law: R.I. Gen. Laws §§ 18-16-2(b), (e), 34-22-6.1

Durable and springing

Is it durable?

A power of attorney keeps working after you become incompetent only if it is in writing and says so, for example 'This power of attorney shall not be affected by the incompetency of the donor' or 'This power of attorney shall become effective upon the incompetency of the donor', or similar words.

Law: R.I. Gen. Laws 34-22-6.1

Durable unless it says otherwise?

No: it continues after incapacity only if it says so.

Starting later (springing)

A written power of attorney can say it 'shall become effective upon the incompetency of the donor'. The statute does not say how incompetency is shown.

Law: R.I. Gen. Laws 34-22-6.1

Agent duties, pay and court review

Asking a court to review an agent

If a guardian or conservator is appointed for you, your agent under a durable power of attorney accounts to the guardian or conservator instead of you, and the guardian or conservator may revoke, suspend or end all or part of the power of attorney.

Law: R.I. Gen. Laws 34-22-6.1(a)

When it ends and how to revoke it

It ends when

• The date you set in the power of attorney
• You revoke or destroy it, or take other affirmative action to end it
• You become incompetent, if it is not a durable power of attorney

How to revoke

The statutory short form says it lasts until the end date you choose or until it is ended 'by revocation, destruction or other affirmative action.' Rhode Island statutes do not set a required method of revoking a financial power of attorney.

Telling others

Tell the agent and every bank or business that has a copy. A person who acts in good-faith reliance on a power of attorney that is valid on its face is not liable for following the agent's instructions, and a person who makes a payment in good faith under a power of attorney is not liable if they did not know you had revoked it, died or become of unsound mind.

Law: R.I. Gen. Laws §§ 18-16-2, 34-22-6.1; R.I. Gen. Laws §§ 18-16-2, 34-22-6.1(b), 34-22-7

Banks, other states and real estate

Banks and other businesses

Rhode Island law does not require a bank or other business to accept a power of attorney. Anyone who acts in good-faith reliance on a power of attorney that is valid on its face incurs no liability for following the agent's instructions, and a good-faith payment under a power of attorney is protected if the payer did not know of the principal's death, unsound mind, bankruptcy or revocation.

Law: R.I. Gen. Laws 34-22-6.1(b); R.I. Gen. Laws 34-22-7

Real estate

A statutory short form power of attorney must be acknowledged in the manner prescribed for acknowledging a conveyance of real property.

Law: R.I. Gen. Laws 18-16-2(b)

Health care directive in Rhode Island

The document and its form

Document

Statutory Form Durable Power of Attorney for Health Care

Official form

Statutory Form Durable Power of Attorney for Health Care (R.I. Gen. Laws 23-4.10-2)Published by Rhode Island General AssemblyVersion: Statute last amended P.L. 2006, ch. 604

Living will

Declaration (Rights of the Terminally Ill Act)

The living will is a separate document.

A competent adult can sign a declaration about withholding or withdrawing life-sustaining procedures. It must be signed in the presence of two witnesses who are not related to you by blood or marriage. It takes effect only when it has been given to your attending physician, the physician finds you are in a terminal condition, and you cannot make treatment decisions. The statute includes a form you may use.

Living will

Law: R.I. Gen. Laws §§ 23-4.10-1.1(5), 23-4.10-2; R.I. Gen. Laws § 23-4.11-3

Signing rules

How to sign

Sign the statutory form in front of two qualified adult witnesses or one notary public. One witness or the notary must sign the extra declaration about not being related to you and not inheriting from you. The form says you must be at least 18 and a Rhode Island resident.

Who signs

Signed and dated by you. If you attach extra pages, date and sign each one at the same time.

Notary

A notary or witnesses (your choice)

Witnesses

2 (instead of a notary)

Who cannot witness

Two qualified adult witnesses, or one notary public, who are present when you sign or acknowledge your signature. None of these may be a witness: your agent or alternate agent, a health care provider, an employee of a health care provider, the operator of a community care facility, or an employee of that operator. At least one of the witnesses (or the notary) must also declare that they are not related to you by blood, marriage or adoption and are not entitled to any part of your estate by will or by law.

Law: R.I. Gen. Laws § 23-4.10-2

Who can be your agent and what the agent can do

Who cannot be your agent

None of these may be named as your health care agent: your treating health care provider, a nonrelative employee of your treating health care provider, an operator of a community care facility, or a nonrelative employee of that operator. The form names one agent, with alternates.

Law: R.I. Gen. Laws 23-4.10-2

When the agent starts

Your agent decides only when you cannot give informed consent to the particular decision; you keep the right to decide for yourself while you can. No treatment may be given over your objection, and life-sustaining care may not be stopped if you object at the time. Unless you set a period, the power lasts until you revoke it, and it ends at your death except for telling family about organ donation wishes.

Law: R.I. Gen. Laws 23-4.10-2

Decisions an agent cannot make

Your agent must act consistently with your wishes as stated or otherwise known. A court can take away the agent's power if the agent authorizes anything illegal, acts against your known wishes, or, where your wishes are unknown, acts clearly against your best interests.

Law: R.I. Gen. Laws 23-4.10-2

Revoking and conflicting documents

Revoking your agent

You can revoke a durable power of attorney for health care at any time and in any way you can communicate, whatever your mental or physical condition. It is effective as to a doctor, provider or emergency personnel once they are told by you or by someone who witnessed the revocation. Signing a new statutory form revokes earlier health care powers of attorney.

Revoking your instructions

A declaration (living will) can be revoked the same way, at any time and in any manner you can communicate.

Telling others

Your attending physician or provider must put the revocation in your medical record. For emergency medical services personnel, the absence of reliable documentation counts as a revocation.

Conflicting documents

If your declaration (living will) and your durable power of attorney for health care conflict, the one you signed later controls on the conflicting point.

Law: R.I. Gen. Laws 23-4.11-4(a)(3)

Law: R.I. Gen. Laws §§ 23-4.10-2, 23-4.10-3, 23-4.11-4

Other states, registry and medical orders

Signed in another state

A health care power of attorney or a declaration signed in another state in compliance with that state's law is valid in Rhode Island.

Law: R.I. Gen. Laws 23-4.10-11, 23-4.11-12

POLST (medical orders)

Medical Orders for Life Sustaining Treatment (MOLST), on a form approved by the Director of Health

Law: R.I. Gen. Laws § 23-4.11-3.1

Guardianship and conservatorship in Rhode Island

What guardianship or conservatorship is

What it is called

Limited guardian, guardian (full), temporary limited guardian or guardian

When a court may appoint one

The petition must be supported by a decision-making assessment tool completed by the person's primary care physician (or another physician who examined and treated them), and must describe the steps taken to use less restrictive alternatives. The court may not appoint a guardian or limited guardian if the person's needs are or can be met by less restrictive alternatives. Unless the person is found totally incapacitated, the court must limit the guardian's powers to the areas where the person lacks capacity; a limited guardianship is not a finding of legal incompetence.

Law: R.I. Gen. Laws 33-15-1, 33-15-2, 33-15-4

Kinds

• Limited guardian (financial, health care, residential and/or relationship matters)
• Full guardian
• Temporary limited guardian or guardian

Law: R.I. Gen. Laws §§ 33-15-1 to 33-15-6

Who can ask, which court and your own choice

Who may ask

Any person may file a verified petition with the probate court clerk in the city or town where the proposed ward lives.

Law: R.I. Gen. Laws 33-15-2

Court

The probate court of the city or town where the person lives (or has property, for a nonresident).

Law: R.I. Gen. Laws 33-15-3

Choosing your own

The court must consider the wishes the person expresses about who should serve.

Law: R.I. Gen. Laws 33-15-6(e)

Effect on a power of attorney

When a guardian or conservator is appointed, a durable power of attorney stays in place but the agent accounts to the guardian or conservator, who can revoke, suspend or end all or part of it.

Law: R.I. Gen. Laws 34-22-6.1(a)

Cost, fee waiver and forms

Forms

• Statutory guardianship forms, including the decision-making assessment tool (R.I. Gen. Laws 33-15-47)

Steps

Steps

Other options and where to report abuse

Supported decision-making

Supported Decision-Making Act

Effective 2019 (P.L. 2019, ch. 113 and ch. 124)

An adult with a disability can choose supporters to help them understand information, make and communicate their own decisions, and arrange services. The agreement can cover help with decisions about life-sustaining treatment. The adult or a supporter can revoke it at any time in writing with notice to the others.

A dated written agreement with the elements of the statutory form, signed by each party in front of two adult witnesses or a notary. Witnesses cannot be a supporter, a supporter's employee or agent, a paid service provider, or someone who does not understand how the person communicates (unless an interpreter for that communication is present). Each supporter signs a separate declaration.

Law: 42-66.13-10

Source: Official text

Less restrictive options

• Limited guardianship: The guardian decides only in the areas where the person needs help.
• Supported decision-making agreement: Supporters help the adult make their own decisions.
• Durable power of attorney: Names an attorney-in-fact for money and property that keeps working after incompetency if it says so.
• Durable power of attorney for health care: Names an agent for health care decisions.

Report abuse or exploitation

Rhode Island Office of Healthy Aging (Adult Protective Services for people 60 and older)

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Law: R.I. Gen. Laws §§ 42-66.13-3, 42-66.13-5, 42-66.13-6, 42-66.13-10

Good to know in Rhode Island

• In Rhode Island a financial power of attorney is NOT durable unless it says it continues after incompetency.

  Law: R.I. Gen. Laws 34-22-6.1

• If you name more than one agent on the statutory short form, they must act together unless you write 'severally'.

  Law: R.I. Gen. Laws 18-16-2(f)

• The health care power of attorney form needs two witnesses or one notary, and one of them must swear they are not your relative or heir.

  Law: R.I. Gen. Laws 23-4.10-2

• Rhode Island has a Supported Decision-Making Act.

  Law: R.I. Gen. Laws ch. 42-66.13, 2019

Questions about powers of attorney in Rhode Island