House Bill 277

AN ACT TO CREATE NEW SECTION 87-3-115, MISSISSIPPI CODE OF 1972, TO INCLUDE POWERS OF ATTORNEY THAT ARE MADE EFFECTIVE UPON A FUTURE EVENT IN THE UNIFORM DURABLE POWER OF ATTORNEY ACT; TO PROVIDE THAT THE PRINCIPAL MAY AUTHORIZE A PERSON TO DETERMINE IF THE FUTURE EVENT HAS OCCURRED; TO AUTHORIZE CERTAIN PERSONS TO DETERMINE WHETHER THE PRINCIPAL IS INCAPACITATED; TO AUTHORIZE PERSONS THAT THE PRINCIPAL DESIGNATED TO DETERMINE THEIR INCAPACITY TO ACT AS THEIR PERSONAL REPRESENTATIVE FOR PURPOSES OF CERTAIN HEALTH CARE INFORMATION LAWS; TO AMEND SECTION 87-3-105, MISSISSIPPI CODE OF 1972, TO INCLUDE POWERS OF ATTORNEY THAT ARE MADE EFFECTIVE UPON A FUTURE EVENT IN THE DEFINITION OF DURABLE POWER OF ATTORNEY FOR THE PURPOSES OF THE UNIFORM DURABLE POWER OF ATTORNEY ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The following shall be codified as Section 87-3-115, Mississippi Code of 1972:

87-3-115. (1) A durable power of attorney created under the Uniform Durable Power of Attorney Act may be made effective upon the occurrence of a future event or contingency.

(2) If a power of attorney becomes effective upon the occurrence of a future event or contingency, the principal, in the power of attorney, may authorize one or more persons to determine in a writing or other record that the event or contingency has occurred.

(3) If a power of attorney becomes effective upon the principal's incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the power of attorney becomes effective upon a determination in a writing or other record by:

(a) A physician or licensed psychologist that the principal is incapacitated; or

(b) An attorney at law, a judge or an appropriate governmental official that the principal is incapacitated.

(4) A person authorized by the principal in the power of attorney to determine that the principal is incapacitated may act as the principal's personal representative pursuant to the Health

Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social Security Act, 42 USCS Section 1320d and applicable regulations, to obtain access to the principal's health care information and communicate with the principal's health care provider.

(5) For the purpose of this section, "incapacitated" means the inability of an individual to manage property or business affairs because the individual has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance.

SECTION 2. Section 87-3-105, Mississippi Code of 1972, is amended as follows:

87-3-105. A durable power of attorney is a power of attorney by which a principal designates another his attorney in fact in writing and the writing contains the words "This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time," or "This power of attorney shall become effective upon the disability or incapacity of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent disability or incapacity, and, unless it states a time of termination, notwithstanding the lapse of time since the execution of the instrument. Further, a durable power of attorney may become effective upon the occurrence of a certain future event or contingency as provided in Section 87-3-115 of this act, if the power of attorney includes language to that effect.

SECTION 3. This act shall take effect and be in force from and after July 1, 2018.