Will Your Advanced Health Care Directive be Honored in Another State?

If you have executed a living will, medical power of attorney or other health care directive and you frequently spend time in a state other than your state of residence, you may want to consider whether your health care documents would be accepted in this other state. Generally, your estate plan documents will be effective outside of your home state. Almost all states honor health care directives executed in other states, provided that the directives are valid under the laws of the state in which they were initially executed. However, this is not always true. The following is a discussion of some issues and considerations as they relate to the effectiveness of out of state health care directives. Be sure to consult with an estate plan attorney for any specific questions.

When Your Health Care Directives May Not Be Effective in Other States

Certain states have limits in place on whether they will honor living wills and medical powers of attorney executed in other states. Many of these states will honor the health care directives only to the extent that they are valid under that state’s laws for the same documents. In the areas that the documents deviate from that state’s law, they may be rejected in part. Further still, some states have no rules whatsoever regarding whether they will honor health care directives. Some states limit the extent to which they will honor health care directives from other states; unfortunately there is currently no way to predict how out of state health care directives will be treated in other states.

Should You Really Worry About This?

You probably do not need to stress too heavily about this even if you spend time in two states who do not wholly reciprocate acceptance of each other’s health care directives. Because every person enjoys the constitutional right to direct their own health care and medical treatment, states are forbidden from infringing upon that right and impeding your wishes with regard to your health care. What this means is that your most basic health care wishes, including your preference for receiving or not receiving life-sustaining medical treatment during times of extreme illness or incapacity, will generally be honored between states, regardless of whether your health care directives completely satisfy the laws of a state in which you are eligible to receive such treatment. However, a state could refuse to acknowledge your designated agent’s authority to make certain health care-related decision on your behalf.

Despite the fact that federal law obligates health care providers to respect your specified directions for your individual medical treatment, you may be wise to make sure that your health care directives are in compliance with the laws of different states in which you could potentially receive medical treatment in the event of incapacity. A minimal amount of planning can eliminate, or at least minimize, any potential confusion or dispute later on, during a time when it is important the your wishes be given full effect.

Why You May Not Want to Make Health Care Directives For Two States

The words “for two states” in this context refer to the execution of two separate sets of health care directives, each tailored to a specific state’s laws. Rarely is it a good idea to make more than a single set of these documents. If the provisions of each set were not wholly identical, the execution of one set of documents could have the effect of revoking the other, meaning it would no longer be effective in any state whatsoever. To complicate things further, each state has different forms, which can make it far more difficult to execute two separate sets of health care directives which would have identical effects.

Ensuring That Your Wishes Will Be Honored

So, what should you do now that you know it is not always effective (or wise) to execute two separate sets of health care directives which cater to the laws of the states where you spend your time? Well, first you can determine whether there is even a conflict between the health care directive laws of your home state, and any other state in which you spend a considerable amount of time. You might be able to obtain this information by consulting with a patient representative at a medical care facility in states that you spend considerable time.

Next, ensure that all the requirements of your home state’s laws (including signing requirements, witness requirements, etc.) have indeed been met, and are in line with the requirements of the second state as well. If the second state requires more witnesses than your home state, for example, make sure to have the correct number of witnesses for the second state sign your directives. This likely will have no effect on the documents in your home state, and will ensure that they comply with the formal requirements of the other state.

If you want to be sure that your health care wishes will be respected in more than one state, you should consult with an experienced estate planning attorney.