It’s a question not many people consider when setting up a healthcare directive: what if that worst-case scenario doesn’t happen in Illinois?
Why You Should Have It
Briefly, a healthcare directive speaks for you when you can’t speak for yourself. You choose what you do and do not want in the way of medical procedures and treatments if you are at a point where life-saving decisions have to be made. It may also be accompanied by a healthcare power of attorney, naming as a spouse, child, sibling, partner, or other individual you consider to be trustworthy who can make decisions on your behalf if you are no longer able to.
Since this is literally a life-or-death decision for you, it’s important to understand different treatments available, and to choose a trustworthy individual as your next-of-kin. The healthcare directive sets out which treatments you would and would not find acceptable when you can’t discuss them yourself.
It’s not uncommon for individuals to become seriously ill or need emergency treatment while traveling, whether on vacation, for medical treatment, or just across a state line for a day trip or to visit relatives. You may be one of those people that spends the colder months in a southern state, like Florida or Arizona, and find yourself hospitalized without warning.
Places like MD Anderson Cancer Center in Houston, TX, The Mayo Clinic’s facilities, and the various Cancer Treatment Centers of America see patients nationwide and from around the world (the latter has an outpatient facility in Chicago.) If Illinois is your “home base,” what happens when you leave it? If you’re receiving medical treatment away from home, will your healthcare directive hold up?
Answer: it depends.
In many cases, the healthcare facility you’re in will accept a healthcare directive and power of attorney from Illinois. However, not all states will accept one from Illinois, or honor a healthcare power of attorney.
Why It’s Complicated
Some states have a certain degree of state reciprocity for healthcare directives, but others do not. Many states will accept a directive as long as it is legally valid in the state in which it was created.
But some states will only accept these directives as far as they comply with that state’s laws. Some states have no direction on their acceptance of an out-of-state directive, meaning there isn’t any clear guidance on the subject.
Federal law protects your right to direct your own healthcare, and state law cannot prevent you from having that. It means that your basic desires for medical treatment must be honored in all 50 states, no matter what state law actually says.
However, things are a little different when it comes to your healthcare power of attorney. What works in Illinois may not work in California, Texas, Arizona, or elsewhere, and there may be more limits placed on the individual you trust to make healthcare decisions for you. You’ll need to ask those questions well in advance of needing the answer.
What To Do
When you’re ready to create your healthcare directive, it’s a good idea to involve your estate planning attorney, who can establish whether or not it is transferrable. He or she can also advise you on your home state’s laws when creating your documents. Check this chart of state reciprocity when you begin preparing your directive.
If your signature and those of any witnesses need to be notarized for any state, make sure that they are.
If you’re planning to travel somewhere out of state for medical treatment, contact a patient representative at the facility and ask if they will accept the documents from Illinois. If there is any issue, ask for state-specific recommendations and discuss them with your attorney.
When you do travel, for any reason, it’s a good idea to keep copies with you in case you are taken to the hospital. A wallet card indicating that you have one is also helpful.
Caveat: Don’t Make Two Directives
Creating a healthcare directive for one or more states sounds like a good idea, but it really isn’t. Most hospitals will consider the most recently signed document to be the current one. The one signed before that in a different state will be superseded and revoked by the most recently signed document, especially if they don’t agree with each other.
Additionally, healthcare regulations vary widely from state to state, so it’s difficult to ensure that both documents have the same provisions and are legal. Because two different states have forms that are not alike, it’s very difficult if not impossible to ensure that both sets of documents have identical instructions.
Traveling? Make Sure Your Healthcare Directive Is In Order
If you’re planning on traveling this year, whether to the next town or across the US, you should protect yourself in the event of an unexpected medical emergency by making sure your healthcare directive is up-to-date and valid in the state where you’re traveling.
When you’re not able to make those decisions on your own, a directive will make sure your wishes are carried out when you can’t speak for yourself. You can also select an advocate and insure that he or she is contacted and involved.
James C. Provenza & Associates has more than 20 years’ experience helping people in the Chicago area with healthcare directives and other important estate planning work. For healthcare directives or any types of power of attorney, speak with Chicago attorney James C. Provenza, by calling today at (847) 729-3939.