Health Care Powers Might Not Travel Well

Written by Jacque Mingle

Posted on Dec 19, 2012

Attention snowbirds or frequent travelers – or anyone who travels.  Your health-care power of attorney and living will might not be recognized everywhere you go.  A recent article in the National Academy of Elder Law Attorneys Journal looked at health care power of attorney and living will laws.  It found that while every state, plus the District of Columbia, recognizes a person’s right to have such documents, many states’ laws are different.

Two types of documents are in play: (1) a health care power of attorney, which names an agent to make health-care decisions in the event you are unable to do so, and (2) a living will, sometimes called an advance health care directive, which spells out the type of care you would like to have – or not have – in the event you cannot communicate such desires.

If you have an Arizona health-care power of attorney and living will, then travel to a state that has a different law, the visiting state may disregard your documents altogether.  Although most states have reciprocity provisions that require out-of-state documents be honored, there are limits.  Some states limit reciprocity only to the degree the out-of-state documents are consistent with their own laws.  Some states do not have reciprocity at all. (Kentucky, Michigan, and Missouri are three.)

Problems may arise, obviously, if an out-of-state document is deemed invalid.  Statutes often provide priority for who can make decisions for you, usually: (1) guardian, (2) spouse, unless you are divorced, (3) adult child, (4) parent, (5) adult sibling, or (6) any other relative in descending order of blood relationship.  In many states, court intervention is required to appoint the person.  An agent or family member could be left with the delay, expense, and inconvenience of a court proceeding or find that someone other than the principal’s intended person may have the power to make the decisions.  This is particularly true with unmarried partners; domestic or same-sex partners may not be on the priority list at all.  (In Arizona, “domestic partner” comes after spouse, adult child, and parent.)

There are many areas that could cause problems; some may render documents invalid; others may create confusion.  One difference among states is the nature of the documents.  In some states, the health care power is separate from the living will.  Other states merge the two.  Some, including Arizona, allow the option of melding the two.  It is important to review your documents to determine exactly what you have.

Some state statutes provide that health care powers become effective only upon incapacity, which, according to the article, is generally defined among states as “the ability to make and communicate an informed decision.”  But in some states, an individual must have a specified condition, such as “terminal illness” or “persistent vegetative state,” before the agent may have decision-making power or the living will provisions be considered.  The author points to Hawaii, which allows the agent to make decisions in the “best interest” of the patient, and Oklahoma, which specifies that the agent cannot act until the “final stage” of an illness, when the patient “will die within a reasonably short period of time.”  (Arizona law limits the agent’s power only by the document itself or court order.)  These differences could cause confusion if the agent finds he or she has no authority because the illness has not reached the stage at which the power is triggered.

Another difference among states is the response to pregnancy.  Not all states have addressed this issue (Arizona has not), but those that have appear to place the life of the unborn child over a woman’s wishes spelled out in a living will.  Generally, statutes provide that if a pregnancy could result in a live birth, a living will provision to withhold life-saving treatment will not be honored.

Perhaps the biggest differences are the requirements for execution–the number of witnesses and who can serve as witness.  Some require two witnesses, some require one, and some none.  While the number of signatures seems like a small thing, if the number required falls short, the document may be deemed invalid.

Other differences:

• Who can execute a living will.  In all states, an “adult” qualifies, but in some states, 18 is “adult”; in others, it’s 19.  Oregon, Rhode Island, and Oklahoma require the principal to be a resident at the time of execution.
• Agent’s acceptance.  Most, including Arizona, do not require the agent to be notified of his or her appointment, but some require that the agent accept in writing.  If you are traveling to Alabama, Michigan, Oregon or North Dakota, make sure your agent has consented to serve in writing.
• Divorce.  Most states revoke a spouse named as agent upon divorce or separation, unless specified otherwise in the document.

As the article states, “[T]here are a myriad of differences between the states’ laws with regard to advance health care directives.  Any one of the differences in the witnessing requirements, language used, or triggering events that make the operative could cause an out-of-state directive to be deemed invalid.”

To be clear, hospitals and doctors frequently do not scrutinize the details of these documents, but if you frequently travel and care about your end-of-life decisions being honored, it’s probably best to play it safe.  Consider executing documents in your visiting state or ensure that your home-state documents conform to the laws of your second home or vacation hot spot.