Are POA and health care directives valid regardless of which US state Mom is living in?

1 answer | Last updated: Oct 08, 2016
A fellow caregiver asked...

My mother may be located in three different states due to the locations of her daughters - she requires full time care and has an advance directive from one state - will it be valid in all states? Re: health care power of attorney - does she need one, in addition to an advance directive, so her daughters can assist with her medical decisions?

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

You may need to take a few steps to make sure the bases are covered for your mother.

First, take a hard look at the advance directive that she has completed. Most of them that have been completed in the lat decade or so include a section that allows people to designate agents or proxies to make decision for them"”effectively combining what used to be called living wills and healthcare powers of attorney into one document. So if your mother has already designated an agent, she needn't do it in another document.

As for finalizing three different advance directives"”one for each state in which the daughters live"”I would advise proceeding cautiously. While some medical and elder care experts advocate that this is a good approach, I have seen it backfire in cases where a disagreement later develops about the type of care to be administered or about who should be empowered as agent to direct it.

In such cases, the law may act in ways that no one anticipated. For example, the laws controlling most advance directives provide that the one finalized most recently is the one that controls"”and that it revokes or obliterates all previous directives. Also, most state laws contain a "reciprocity" provision"”meaning that one state will recognize a directive from another state as being valid.

To find out how the law might interact for the daughters' states, you'd simply need to look up each state's advance directive statute and check out what it has to say about being valid or recognized in another state.

There is also a less legalistic but perhaps more realistic answer to your question, based on the reality that some medical experts justifiably remain confused about how to proceed.

Since your mother now needs fulltime care no matter where she is physically, it is likely she has a health care provider in each of the states involved. Perhaps each daughter could contact the local provider and follow the directions given there"”being sure to document the visit with names, dates, times and wishes expressed. While it's a somewhat worky solution, at least you can be assured you are likely to get the kind of care your mother would want as recognized by the medical personnel likely to provide it.