Despite your well thought-out plans, your living will, or advance medical directive, may not be valid in all states where you reside.
- Advance directives are used throughout the country, but there are no universal forms and individual state law governs these documents.
- While some states will recognize the laws of the state where the directive was issued, others may not since the rules may vary from state to state.
- It’s important to execute separate documents for each state where you frequently spend time, and to name the same person as your representative in every state’s documents.
Perhaps one of the most important decisions you can make regarding your future is whether you wish to have certain medical treatments administered in the event of your physical or mental incapacity. You may already understand the importance of documenting these wishes and naming the individual you would want to make your medical and financial decisions in the event that you could not. However, despite your well thought-out plans, these advance medical directives may not always be valid. And the result could be an emotional and financial disaster for your surviving family.
Consider the hypothetical story of Laura, an ICU nurse who had seen more than her share of patients kept alive by artificial means, and who did not want to end up in a similar situation. Therefore, she made sure that she and her husband Jim had living wills included in their estate plans. Laura was firm with her decision and shared it with her family members.
Eight years after the documents were signed in their home state, Laura and Jim were vacationing at their out-of-state cabin. While hiking in the mountains, Laura slipped and tumbled into a ravine. She suffered a back injury and was unconscious when airlifted to the hospital. Laura was paralyzed from the neck down, never woke up, and was kept on a ventilator. Jim and her parents stayed by her side. After six weeks, Jim presented Laura’s living will with instructions to let her die. Her parents objected for religious reasons and took the case to court. The judge ruled in their favor.
The court held that if Laura had wanted a binding document, she would have drafted one in the state where she owned a second home. Additionally, the judge pointed out that since the living will from Laura’s home state had not been updated for several years, it might not express her current wishes.
Advance directives are used throughout the country, but there are no universal forms and individual state law governs these documents. While some states will recognize the laws of the state where the directive was issued, others may not since the rules may vary from state to state. And the titles of the documents may differ as well. Complications can also result when states:
- Require that you use their statutory forms
- Are very specific about which types of advance directives their laws will recognize
- Require that certain conditions be met before your instructions are honored
- Will not recognize documents that do not include the signature of the person who is to make decisions for you
Furthermore, there are some states that take the position that once certain treatments have begun, they cannot be stopped by an advance directive. And a number of states’ laws make it better to combine a power of attorney with a living will into one document, while several do not.
There are a few steps you can take to assure that your wishes are followed from state to state.
- Review your current documents with your attorney
- Execute separate documents for each state where you frequently spend time
- Name the same person as your representative in every state’s documents
You may also want to schedule an annual review with your attorney because states’ laws occasionally change. In addition, new case law provides new precedents, thus possibly making forms you have used obsolete.
Although no one can predict what their future may hold, proper planning can provide protection from emotional and financial disaster for you and your loved ones.
This article is for informational purposes only and is not intended as an offer or solicitation for the sale of any financial product or service. It is not designed or intended to provide financial, tax, legal, investment, accounting, or other professional advice since such advice always requires consideration of individual circumstances. If professional advice is needed, the services of a professional advisor should be sought.