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IN Senate Bill 204

Legislation

State: Indiana
Signed: April 15, 2021

Effective: July 01, 2021
Chapter: Public Law No. 50

Summary
Senate Bill 204 authorizes an advance directive to be notarized using remote online notarization, but does not authorize a directive to be executed using “telephonic presence.”
Affects
Creates Chapter 16-36-7 of the Indiana Code.
Changes
  1. Provides that an advance directive must be (a) signed by the declarant in the presence of 2 adult witnesses or in the presence of a notarial officer, (2) signed in the declarant's name by another adult individual at the specific direction of the declarant, in the declarant's presence, and in the presence of the 2 adult witnesses or a notarial officer.
  2. Clarifies that an individual who signs the declarant's name on the advance directive may not be a witness, the notarial officer, or a health care representative designated in the advance directive.
  3. Provides that in order to perform a notarial act on an advance directive, the declarant and notarial officer must be (a) directly present with each other in the same physical space, or (b) able to interact with each other in real time through the use of any audiovisual technology, now known or later developed, whose use complies with IC 33-42.
  4. Provides that in order to perform a remote online notarial act on an advance directive, the notarial officer must be able to positively identify the declarant by using an identity proofing method permitted under IC 33-42-0.5-16.
  5. Provides that in order to perform a notarial act on an advance directive, the notarial officer must be able to interact with the declarant and each other witness, if any, by observing the declarant's (a) expression of intent to execute an advance directive or other document; and (b) actions in executing or directing the execution of the advance directive or other document.
  6. Requires a notarial officer who notarizes an advance directive using remote online notarization to be able to observe that the notarial officer is able to see and hear, in real time, the declarant's actions and expressions of intent either in the declarant's physical presence or through audiovisual communication as defined in IC 33-42-0.5-5 5.
  7. Provides that if the advance directive contains additional witness signatures or a notarial certificate that is not needed, the advance directive is still validly witnessed and acknowledged.
  8. Provides that a notarial officer may complete and sign an advance directive in 2 or more counterparts in tangible paper form, with the declarant's signature placed on 1 original counterpart and with the signatures of the witnesses, if any, or the notarial officer's signature and certificate on 1 or more different counterparts in tangible paper form, so long as the declarant and the notarial officer comply with the presence requirement, and so long as the text of the advance directive states that it is being signed in separate paper counterparts.
  9. Provides that if an advance directive is signed in counterparts, (a) the declarant, (b) a health care representative who is designated in the advance directive, (c) a person who supervised the signing of the advance directive in that person's presence, or (d) any other person who was present during the signing of the advance directive must combine all of the separately signed paper counterparts of the advance directive into a single composite document that contains the text of the advance directive, the signature of the declarant, and the signatures of the witnesses, if any, or the notarial officer.
  10. Provides that if witnesses instead of a notarial officer are used to witness the execution of an advance directive, the witnesses and declarant may use “telephonic interaction” to execute the directive but prohibits a declarant and notarial officer to use “telephonic interaction” to execute the directive.
  11. Defines “telephonic interaction” to mean interaction through the use of any technology, now known or later developed, that enables 2 or more people to speak to and hear each other in real time even if one 1 or more of the persons cannot see each other.
Analysis

As introduced, Senate Bill 204 sought to authorize notarial officers, including Notaries Public, to use remote online notarization or “telephonic interaction” to perform notarial acts on advance healthcare directives. This “telephonic interaction” provision was immediately flagged by the NNA as a nonstarter in this patient rights bill. Through the NNA and the Indiana Secretary of State’s office, a compromise was forged that allowed 2 witnesses to use telephonic interaction to witness the signing of an advance directive, but not notarial officers who were asked to take the acknowledgments of patients on their directives.

Read Senate Bill 204.

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