Section 26-1-2 Durable Power of Attorney; Appointment by Court of Guardian, Etc., Subsequent to Execution of Durable Power of Attorney; Effect of Death of Principal Upon Agency Relationship; Affidavit by Person Exercising Power of Attorney as to Lack of Knowledge of Revocation, Etc.; Health Care Power of Attorney.

(a) A durable power of attorney is a power of attorney by which a principal designates another his or her attorney in fact or agent in writing and the writing contains the words “This power of attorney shall not be affected by disability, incompetency, or incapacity of the principal” or “This power of attorney shall become effective upon the disability, incompetency, 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, incompetency, or incapacity. (b) All acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability, incompetency, or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his or her successors in interest as if the principal was competent, not disabled, and not incapacitated. (c)(1) If, following execution of a durable power of attorney, a court of the domicile of the principal appoints a guardian, curator, or other fiduciary charged with the management of all the property of the principal or all of his or her property except specified exclusions, the attorney in fact is accountable to the fiduciary as well as to the principal. The fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if he or she was not disabled, incompetent, or incapacitated. (2) A principal may nominate, by a durable power of attorney, the guardian, curator, or other fiduciary for consideration by the court if proceedings to appoint a fiduciary for the principal are thereafter commenced. The court shall make its appointment in accordance with the most recent nomination of the principal in a durable power of attorney except for good cause or disqualification. (d)(1) The death of a principal who has executed a written power of attorney, durable or otherwise, does not revoke or terminate the agency as to the attorney in fact or other person who, without actual knowledge of the death of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the successors in interest of the principal. (2) The disability, incompetency, or incapacity of a principal who has previously executed a written power of attorney that is not a durable power does not revoke or terminate the agency as to the attorney in fact or other person who, without actual knowledge of the disability, incompetency, or incapacity of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his or her successors in interest. (e) As to acts undertaken in good faith reliance thereon, an affidavit executed by the attorney in fact under a power of attorney, durable or otherwise, stating that he or she did not have, at the time of the exercise of the power, actual knowledge of the termination of the power by revocation or of the death, disability, incompetency, or incapacity of the principal is conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit, when authenticated for record, is likewise recordable. (f) This section shall not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation or a change in the principal’s capacity. (g)(1) A principal may designate under a durable power of attorney an individual who shall be empowered to make health care decisions on behalf of the principal, in the manner set forth in the Natural Death Act, if in the opinion of the principal’s attending physician the principal is no longer able to give directions to health care providers. Subject to the express limitation on the authority of the attorney in fact contained in the durable power of attorney, the attorney in fact may make any health care decision on behalf of the principal that the principal could make but for the lack of capacity of the principal to make a decision, but not including psychosurgery, sterilization, abortion when not necessary to preserve the life of the principal, or involuntary hospitalization or treatment covered by Subtitle 2 of Title 22. A durable power of attorney executed pursuant to this section may be revoked by written revocation signed and dated by the principal or person acting at the direction of the principal, or being obliterated, burnt, torn, or otherwise destroyed or defaced in a manner indicating intention to cancel or by a verbal expression of intent to revoke made in the presence of a witness 19 years of age or older who signs and dates a writing confirming an expression to revoke. (2) Notwithstanding anything in this section to the contrary, an attorney in fact shall have the authority to make decisions regarding provision, withholding, or withdrawal of life-sustaining treatment and artificially provided nutrition and hydration but only a. if specifically authorized to do so in the durable power of attorney, b. if the substantive provisions of the durable power of attorney are in substantial compliance and if the durable power of attorney is executed and accepted in substantially the same form as set forth in the Alabama Natural Death Act, and c. in instances of terminal illness or injury or permanent unconsciousness, if the authority is implemented in the manner permitted under the Alabama Natural Death Act. All durable powers of attorney executed prior to May 8, 1997, shall be effective to the extent specifically provided therein notwithstanding the provisions of this subsection. The decisions made by the attorney in fact shall be implemented in accordance with the same procedures set forth in the Alabama Natural Death Act for health care proxies. (3) Any authority granted to the spouse under a durable power of attorney shall be revoked if the marriage of the principal is dissolved or annulled, or if the parties are legally separated or a party to divorce proceedings. (4) Subject to any limitation in the durable power of attorney, an attorney in fact may, for the purpose of making a health care decision, request, review, and receive any information, oral or written, regarding the principal’s physical or mental health, including medical and hospital records, execute a release or other document required to obtain the information, and consent to the disclosure of the information. (5) Under no circumstances shall the health care provider of the principal or a nonrelative employee of the health care provider of the principal make decisions under the durable power of attorney. For purposes of this subsection, a health care provider is defined as any person or entity who is licensed, certified, registered, or otherwise authorized by the laws of this state to administer or provide health care in the ordinary course of business or in the practice of a profession. (6) No health care provider or any employee or agent thereof who in good faith and pursuant to reasonable medical standards follows the direction of a duly authorized attorney in fact shall, as a result thereof, be subject to criminal or civil liability, or be found to have committed an act of unprofessional conduct for an action taken thereunder. Any health care cost or liability for the cost associated with any decision made pursuant to this section shall be the same as if the health care were provided as a result of the principal’s decision relating to his or her own care. (7) Any person who, without the consent of the principal, willfully conceals, cancels, or alters a durable power of attorney or any amendment or revocation of the agency or who falsifies or forges a durable power of attorney, amendment, or revocation for purposes of making health care decisions shall be civilly liable. In addition, those persons shall be subject to the criminal penalties set forth in the Alabama Natural Death Act. (8) Any individual acting as an attorney in fact under a duly executed durable power of attorney, which includes provisions which comply with subdivision (2) regarding health care decisions who authorizes the providing, withholding, or withdrawing of life-sustaining treatments or artificially provided nutrition or hydration in accordance with the durable power of attorney and pursuant to this subsection shall not be subject to criminal prosecution or civil liability for that action. (9) Nothing in this subsection regarding the appointment of an attorney in fact with respect to health care decisions shall impair or supersede any legal right or legal responsibility which any person may have, under case law, common law, or statutory law to effect the provision, withholding, or withdrawal of life-sustaining treatment or artificially provided nutrition and hydration in any lawful manner. In such respect, the provisions of this subsection are cumulative. (10) No physician or other health care provider, and no health care service plan, health maintenance organization, insurer issuing disability or life or health insurance, self-insured employee welfare benefit plan, nonprofit medical service corporation, or mutual nonprofit hospital or hospital service corporation shall require any person to execute a durable power of attorney with respect to health care decisions as a condition for being insured for, or receiving, health care services. (11) Nothing in this subsection regarding the appointment of an attorney in fact with respect to health care decisions shall impair or supersede the jurisdiction of the circuit court in the county where a patient is undergoing treatment to determine whether life-sustaining treatment or artificially provided nutrition and hydration shall be withheld or withdrawn in circumstances not governed by this subsection. (12) This subsection shall create no presumption concerning the intention of an individual, who has not executed a durable power of attorney regarding health care decisions, or any other advance directive for health care, or if the durable power of attorney, or advance directive for health care is executed, the durable power of attorney or advance directive for health care is ambiguous or silent as to a particular health care matter, to consent to the use or withdrawing or withholding of life-sustaining treatment or artificially provided nutrition and hydration. The terms “person” and “advance directive for health care” shall have the meaning as under Sections 22-8A-1, et seq. (13) A durable power of attorney executed in another state in compliance with the law of that state or of this state is valid for purposes of this subsection, but this subsection does not authorize the administration, withholding, or withdrawal of health care otherwise prohibited by the laws of this state. (14) Any durable power of attorney regarding health care decisions made prior to May 8, 1997, shall be given effect provided that the durable power of attorney was legally effective when written and artificially provided nutrition and hydration shall not be withdrawn pursuant to the durable power of attorney unless specifically authorized herein. (h) This provision applies to all powers executed prior to January 1, 2012.