If you regularly spend time in more than one state, it’s smart to consider whether a living will, advance directive, or health care power of attorney made in your home state will be valid in the second state, too. Usually, it will be. Most states accept health care directives from other states as long as the documents are legally valid in the state where they were made -- but this is not always the case.
Some states limit the extent to which they will honor health care directives from other states, accepting the documents only so far as they comply with their own laws. And a few states are silent about whether or not they will honor documents from other states, creating a legal gray area.
If you split your time between states that don’t have perfect reciprocity, there’s probably no great cause for alarm. You have a constitutional right to direct your health care, and individual states may not infringe upon that basic right. That means your essential health care wishes -- such as whether or not you want to receive life-sustaining treatment when close to death -- should be honored from state to state, whether or not your documents precisely comply with state law. There may be a few specifics -- for example, some of your health care agent’s powers to make decisions for you -- that a state could refuse to honor.
However, even though the law of the land requires health care providers in any state to honor your clear directions for treatment -- or transfer you to a provider who will -- you may want to take steps to ensure your documents will work with ease in different states. A bit of planning could minimize later confusion or delay in carrying out your wishes.
Rarely would you want to make a set of health care documents for more than one state. If your health care instructions for each state weren’t absolutely identical, signing one document could simply revoke the other -- whichever document was signed later would control. To make it even trickier, differences in state forms can make it almost impossible to prepare two sets of documents with identical directions.
If it doesn’t make sense to make documents for the different states where you spend time, what should you do? First, do what you can to find out whether your home state’s health care documents fully protect you in the second state. You may be able get the information you need simply by speaking to a patient representative at a hospital in the second state -- explain your situation and ask what they recommend. Second, be sure your home state’s signature requirements -- witnessing and notarization -- cover the requirements for the second state, too. (To find the requirements, see Living Wills & Health Care Powers of Attorney in Your State.) If they don’t, ask an extra witness to sign or get your documents notarized so they are fully compliant with the requirements of both states.
If you don’t feel confident that your health care wishes will be honored in both states where you spend time, ask an experienced estate planning lawyer for guidance.
Learn more about Living Wills & Medical Powers of Attorney on Nolo.com.