Has Your Durable Power of Attorney for Health Care Decisions Expired?

Posted By Attorney Eric S. Gullotta || 1-Jul-2013

As part of my estate planning practice I often review people's existing estate plans as well as creating new ones. People often ask me to review one particular document like a will or trust but if they permit me, I will review all of their other documents as well.

One document that is a standard part of a comprehensive estate plan is an Advanced Health Care Directive ("AHCD") or in another form called a Durable Power of Attorney for Health Care Decisions ("DPAHCD"). The DPAHCD is typically done on a preprinted form and was used by estate planning attorneys years ago, perhaps as far back as the early 1990's. This has been replaced with the AHCD. Now, the DPAHCD had most of the same provisions or authorizations as the AHCD except for specific HIPAA (Health Insurance Portability and Accountability Act) and CMIA (California Medical Information Act) information releases. This was probably due to the fact that HIPAA was enacted in April 2003. Therefore, it is often a sufficiently legally binding document that accomplishes that same thing as its updated version – except for one very important provision...

DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS

As you can see above, this document appears to be a preprinted form with very legal looking language. Perhaps you had this document prepared as part of your estate plan many years ago or when you were admitted to a hospital at some time in the past. You assumed that it is still valid, right? Please look the paragraph closely with the box around it. It states, "...this power will exist for seven years from the date you execute this document..." What does this mean? You have an EXPIRED health directive and it is therefore legally useless! Absolutely none of my clients who have brought these documents in had a clue that the document they had was worthless.

There are many of these documents out there and they all don't look like this. Many of them have seven year expiration periods. As an aside, currently prepared AHCDs do not expire.

Now is the time to be sure your estate planning documents are valid and that there are not any latent or hidden defects. Please don't wait until they are needed to find out that the hospital won't honor them and risk your quality of care.

My office is happy to review your existing Health Directive at no charge. Please call my office at (707) 509-3880 to setup an appointment at your convenience.

Categories: Estate Planning