Calling all lawyers or anyone else who knows about this.
If someone has a Medical Durable Power of Attorney (or health care proxy) drawn up in one state, by law does that have to be recognized by all states?
Also, is this as valid as a Living Will and/or Advanced Directive? Currently each state has their own forms and laws for Advanced Directives.
Thanks.
Stacy
Calling all lawyers or anyone else who knows about this.
If someone has a Medical Durable Power of Attorney (or health care proxy) drawn up in one state, by law does that have to be recognized by all states?
Also, is this as valid as a Living Will and/or Advanced Directive? Currently each state has their own forms and laws for Advanced Directives.
Thanks.
Stacy
Generally speaking, under the principle of comity, a state must honor a valid legal instrument (e.g., will, POA, contract) or act (e.g., marriage/divorce, adoption) that is “from” another state.
A medical POA is not the same thing as a living will or advanced directive. A medical POA says “If I cannot act for myself, then person X (e.g., spouse) can make decisions on my behalf.” A living will or advanced directve says “If I cannot act for myself, then my health care providers must follow my stated intentions as set forth in this document regarding my health care.”
Hope that helps.
Required Note (because of my profession and to keep my insurance in place) - the above, which are general statements regarding the law, should not be construed as specific legal advice (as we do not have an attorney-client relationship).
Thanks. One point of clarification, while states have to recognize POAs from other states, why does each state have their own Living Will and Advanced Directive forms and laws?
For the lawyers, I am not using this information as legal advice for myself or anyone else, I’m using it as general research for a project I’m working on.
**why does each state have their own Living Will and Advanced Directive forms and laws? **
Because the Feds have not preempted the field. Each State has its own spin on things. As a practical matter, you want your directions followed. To get those directions followed you want to have a copy where it will do some good, like in your primary care physician’s chart on you as opposed to sitting in a drawer at home, or in your attorney’s file on you.
While Scrubbie has accurately stated the law (at least as I know it) doctors and administrators can get freaky if the documents presented don’t look like the ones they are used to seeing. This can lead to delays so the practical solution is to make sure your doctor is on board with your decisions and has your paperwork before it is needed.
What is the research project?
One point of clarification, while states have to recognize POAs from other states, why does each state have their own Living Will and Advanced Directive forms and laws?
Tri N OC is right, although there is some question (at least in my mind) about whether the federal government has the constitutional authority to pre-empt state laws regarding healthcare POAs, etc. Take a look at the Tenth Amendment and the Federalist Papers.