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Health Care Directives — Advice for Snowbirds and Travelers

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Snowbirds and travelers

APRIL 20, 2015 VOLUME 22 NUMBER 15

Arizona weather is beautiful, especially this time of year. We do have our weather challenges — for most of the state, that means the summer months — but there is no doubt that Arizona is attractive to visitors from more northern climes during the fall, winter and spring.

Many of our “snowbird” visitors have taken care of their estate planning at home, before they get here. They might have signed a will, a trust, a durable financial power of attorney, and a health care power of attorney. Let us focus, for a moment, on that last document — the health care power of attorney.

If a resident of another state has signed a health care power of attorney and a living will in their home state, but they spend three months every winter in Arizona, should they sign a second document to govern their care while they are in Arizona? If so, what if they are only in Arizona for two weeks?

We’re not like those television shows, with driving music and a scary-sounding narration. We’ll give you the answer now, and explain it for a few moments. Generally speaking, we don’t think an occasional visitor — even one who stays for weeks or months and returns every year — really needs to sign separate Arizona documents. There might be exceptions, though, depending on some individual situations. We’re happy to explain what we mean — plus, this gives us a chance to write about “advance directives” generally.

If you have signed any documents about your health care decision-making — whether a “health care power of attorney,” a “living will,” a “health care proxy declaration,” or some other similar-sounding document, you have signed an advance directive. The latter term is the catch-all description for all of the former documents, regardless of local laws and terminology. Advance directives are just any directive about your health care that you make in advance.

(A pet peeve: an advance directive may be very clever and innovative — that is, advanced — but then it would be called an “advanced advance directive.” In other words, your health care documents are not “advanced directives,” but “advance directives.” Thanks — we feel better getting that off our chests.)

But is your Minnesota (or New York, or Iowa) health care power of attorney — whatever it is called in the state where it was written — valid in Arizona? Short answer: yes. Arizona law says that a health care directive from another state is valid in Arizona “if it was valid in the place where and at the time when it was adopted” (so long as it doesn’t violate Arizona criminal law).

But wait — we’re not done. There are still a couple questions to consider:

  1. Did you name your daughter back in Wisconsin (where you live nine months of the year) as your health care agent? If so, do you think it might make sense to make your son in Arizona your agent while you’re here? It might not be a big deal, and it might even be a good idea to make them co-agents all of the time, so you don’t have to worry about where you are when you take ill. But the logic behind your original choice of agent might be different during your extended stay.
  2. Do you know whether Arizona’s law is more generous than your home state’s law? Many states still restrict living wills, for instance, to “terminal conditions.” Arizona does not have that limitation. You might want to be governed by Arizona’s more generous statutes when you can — and your lawyer back home might even tell you that she likes using something like Arizona’s language even though your state doesn’t expressly approve of it.
  3. Do you have to use a particular form in your home state? A handful of states make you use something in substantially the state statute’s language, and that language tends to be limiting. Arizona doesn’t require that, and so your health care power of attorney can be more tailored to your individual wishes. Feel strongly about particular medical procedures, or about organ donation, or even about cremation? Arizona lets you put all of that in your health care power of attorney, and you might like to take advantage of that approach while you’re here.
  4. But wait — it’s not all sweetness and light. If you decide to sign a new health care power of attorney and living will while you’re in Arizona, you might have effectively revoked your home-state documents. Better make sure you don’t have to visit the lawyer twice every year — once when you come to Arizona for three months and once when you return home.
  5. Are you sure you’re not an Arizona resident? Even if you are, your out-of-state health care directives are still valid, but as you creep up on 50/50 time spent in two states, you might want to get some advice about which one you really live in.
  6. There’s something to be said for using a form that is familiar to the local medical community, just to save time and reduce the possibilities for misunderstandings. That’s probably not a big deal, but it does argue for using the local forms by default. Truth be told, though, we don’t use the Arizona statutory form for health care directives at all — we think we can better capture clients’ wishes with a more eloquent and less generic document.

You can get Arizona’s generic health care power of attorney, mental health care power of attorney, living will and related forms easily, and free, online. The Arizona Attorney General’s office keeps a collection of forms and instructions, and we direct people to it all the time. Arizona also has a really neat system for keeping your health care directives online, too — and then you can just carry a wallet card with login information for anyone who needs to download a copy.

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Robert B. Fleming

Attorney

Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman

Attorney

Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson

Attorney

Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour

Attorney

Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.