State High Court Strengthens Alaska Health Care Power of Attorney Law in Bohn v. Providence Health Services – Washington, Slip Op. No. 7517, Apr. 16, 2021

Alaskans, who have gone through the process of designating someone to act for them in medical situations should they be unable to make decisions for themselves, should breathe a heavy sigh of relief today. The Supreme Court just handed down a blow to health care providers who seek immunity under Alaska’s Health Care Decisions Act (“HCDA”), AS 13.52.010-.395, after ignoring agents or surrogates granted powers by a principal under an otherwise valid durable health care power of attorney (“HCPOA”). 

In Bohn, parents holding a valid 2007 HCPOA tried to use it to stop inpatient treatment of their 26-year-old son by attending physicians they believed were worsening their son’s condition by administering psychiatric and other medications, which were making him “effectively catatonic.”  In response, the hospital restricted the parents’ access to their son and announced it was now “making all health care treatment decisions” for the son in lieu of the parents, the son’s HCPOA agents (a move the Court later found prohibited under AS 13.52.080(a)). 

After the hospital got Adult Protective Services (“APS”) involved, the parents produced a general power of attorney (“POA”), also granted by their son, in an attempt to obtain his medical records and transfer him to another medical facility. In response, APS filed for guardianship.  With proof of notice to the parents questionable, a hearing was held with the Office of Public Advocacy (“OPA”) appointed as temporary guardian and the parents’ POA temporarily suspended.  Soon thereafter, OPA became full guardian, and the hospital transferred the son to Seattle for psychiatric treatment. The parents followed and were successful temporarily removing their son from the facility only to have him returned three days later by law enforcement escort. During his absence from the facility, however, his condition improved without the medications prescribed by the Alaskan physicians.  The new medical staff in Seattle noted the improvement and also withheld the prior prescribed medication regime. The son recovered enough to be discharged two months later, and he and his parents returned to Alaska. 

The son sued the hospital claiming, among other things, it violated his rights under the HCDA when its physicians and staff substituted their judgment over that of his parents as his agents under his HCPOA. The Supreme Court agreed. Focusing on the son’s Alaska hospitalization, the Court held the HCDA’s immunity provision was limited to protecting health care providers who make “good faith mistakes about an individual’s legal authority as an agent or surrogate” under an Alaska HCPOA, not where the health care providers believe the validly appointed agent is not acting in the patient’s best interest.

The Court found the hospital’s assertion of HCDA immunity under these facts “undermines the role of the surrogate or agent.”  Protecting health care providers under the HCDA where they usurp a HCPOA agent’s authority simply because they disagree the agent’s decision is in the best interest of the patient would risk “turning [the HCDA immunity provision] into the subsection that ate the statute,” as argued by the son’s legal team. The Court further opined:

“From the providers[‘] perspective, if the surrogate or agent were acting in the patient’s best interest, the surrogate or agent would have made the same decision as the provider.  And if the surrogate or agent did not make the same decision, the provider would then be able to assume that because the surrogate or agent was not acting in the patient’s best interest, that person lacked authority to direct the patient’s care.  As a result[,] any provider in that situation would be free to ignore any direction from the surrogate or agent without fear of civil or criminal liability.”

Interpreting the statute as enacted and later amended by the Alaska Legislature, the Court continued, meant interpreting the HCDA in such a way that avoids “eliminating the role of a surrogate or agent altogether,” the ultimate result of the flawed argument advanced by the hospital.  Simply put, the Court concluded the HCPA immunity provision’s purpose is “to protect health care providers who accidently follow health care decisions made by the wrong people” or persons who lack “legal authority as an agent or surrogate.” 

Clearly, health care providers will not be able to seek refuge under the HCDA’s immunity provision if they ignore a HCPOA and later assert the agent lacked authority because the provider determined the agent’s decisions were not in the principal-patient’s best interest.  Such an argument, the Court concluded would “functionally eliminate the role of the agent or surrogate, which is contrary to the HCDA’s purpose.”  To succeed under that basis, a health care provider must show it rejected a HCPOA agent’s instructions only under the express exceptions provided in the HCDA, such as not following the patient’s wishes, values, and best interest.

Today’s decision highlights the importance of having a valid durable HCPOA and appointing an agent, who clearly understands the statutory authority and powers granted under Alaska law.  Undeterred by the various state agencies and the hospital’s full administrative authority, the parents in Bohn successfully pressed on asserting their power of appointment given by their son as principal gave them legal authority to act as his agent under the statute despite the health care providers disagreement.  In their fight, the appellants solidified for all Alaskans the authority and powers given an agent under an Alaska HCPOA as granted under Alaska Law.

If you have questions about a power of attorney for health care or any other purpose, you can call Polaris Law Group, P.C., and set up a complimentary legal consultation to discuss your POA needs and other Estate Planning matters.  Call  907.885.6619 or visit us at

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