Indiana § 16-36-7-19 - "Presence"; "present"; "to be present"

§ 16-36-7-19. "Presence"; "present"; "to be present"

Sec. 19. (a) As used in this chapter and with respect to interactions between a declarant and a witness who signs or participates in the signing of an advance directive or other document under this chapter, "presence", "present", and "to be present" means that throughout the process of signing and witnessing the advance directive or other document the following must occur:

(1) The declarant and the witness are:

(A) directly present with each other in the same physical space;

(B) able to interact with each other in real time through the use of any audiovisual technology now known or later developed; or

(C) able to speak to and hear each other in real time through telephonic interaction when:

(i) the identity of the declarant is personally known to the witness;

(ii) the witness is able to view a government issued, photographic identification of the declarant; or

(iii) the witness is able to ask any question of the declarant that authenticates the identity of the declarant and establishes the capacity and sound mind of the declarant to the satisfaction of the witness.

(2) The witnesses are able to positively identify the declarant by viewing a government issued, photographic identification of the declarant, or by receiving accurate answers from the declarant that authenticate the identity of the declarant and establish the capacity and sound mind of the declarant to the satisfaction of the witness.

(3) Each witness is able to interact with the declarant and each other witness, if any, by observing:

(A) the declarant's expression of intent to execute an advance directive or other document under this chapter;

(B) the declarant's actions in executing or directing the execution of the advance directive or other document under this chapter; and

(C) the actions of each other witness in signing the advance directive or other document.

The requirements of subdivisions (2) and (3) are satisfied even if the declarant and one (1) or all witnesses use technology to assist with one (1) or more of the capabilities of hearing, eyesight, or speech to compensate for impairments of any one (1) or more of those capabilities.

(b) As used in this chapter and with respect to interactions between a declarant and a notarial officer who signs or participates in the signing of an advance directive or other document under this chapter, "presence", "present", and "to be present" means that throughout the process of signing, acknowledging, and notarizing the advance directive or other document the following must occur:

(1) The declarant and the notarial officer are:

(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.

(2) The notarial officer is able to positively identify the declarant by using an identity proofing method permitted under IC 33-42-0.5-16.

(3) Each witness or the notarial officer is 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 under this chapter; and

(B) actions in executing or directing the execution of the advance directive or other document under this chapter.

If the declarant appears before the notarial officer in a manner that satisfies the definitions of "appear" and "appearance" as defined in IC 33-42-0.5-3, then the declarant and the notarial officer satisfy the presence requirement described in this chapter. The requirements specified in subdivisions (2) and (3) are satisfied even if the declarant and the notarial officer use technology to assist with one (1) or more of the capabilities of hearing, eyesight, or speech to compensate for impairments of any one (1) or more of those capabilities.

As added by P.L.50-2021, SEC.63. Amended by P.L.9-2022, SEC.33; P.L.162-2022, SEC.1.