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Has your durable power of attorney for health care decisions expired?

Has your durable power of attorney for health care decisions expired?

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...

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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 707.938.7234 to setup an appointment at your convenience.

This post has One Comment

  1. Patty Wertz

    I am the AHCD for my mother, nominated by her if there was a conservatorship and is not affected by capacity. The document was signed in 2008 and in 2013 she was hospitalized for 4 days for dehydration. The AHCD authorized me to make her healthcare decisions and to hire household employees, handle mail, provide meals etc & I did this for 4 years. Actually longer. In 2017, my aunt from Iowa came against my mothers wishes and called mom’s attorney. Even though mom had caregivers 2 shifts (am & PM) every day, and even though mom paid her bills thru mostly auto pay & we bought groceries. Still further mom had fiduciary agreement thru Wells Fargo Advisors wealth management whose investments funded her trust. The attorney prepared a documents to revoke the trust and another document too I think, and while mom was not in agreement told her she had no choice but to sign the documents, but she never paid for them (whereas her documents had been updated the same month dad died & were paid), These 2017 documents were not carried out and mom never went to her bank or released her authority at all. In 2019, the licensee (private professional fiduciary) petitioned for Conservatorship…which was denied by Judge Elliott Daum based upon the Court Investigators Report Recommendation since NO GOOD CAUSE SHOWN. The fiduciary totally disregarded and disarmed my mom by a series of unethical actions. She closed mom’s Value Checking account after she presented the invalid documents to the bank. The bank would not print checks for the estate due to the licensee not having a copy of dad’s death certificate. Mom had not consented or agreed to closing this account since she still wrote checks on this account and she had most of her household bills on AUTOPAY THRU IT. I have the 2 previous cash sweep statements, July 2017 & 2018 showing my mom as Trustee…with re-invest and balances almost $300,000 yet the licensee disabled mom from the already in place banking and bill paying that was functioning & further attempted to use undue influence with Sonoma County offices (i.e., adult protective services and National certified guardian/public guardian) and reports that did not result in opening a case. file or criminal protective order to gain not only approval for her actions after the fact, but further to eliminate me from mom’s agent as well as later voiding all her estate documents. The attorney had an appointment with mom to discuss the bank actions as well as other things, but mom’s attorney cancelled that appointment…saying something about capacity. It was mom’s attorney, who had actually drafted the licensee documents and notarized them as well. I have the original documents which include my father’s will in 2007 which my father’s signature is notably not his normal writing (one letter on top the next and the signatures witnessing the will were this same attorney and my uncle from Iowa. The typed witness statement that my dad appeared to be of sound mind…which simply was known by all to be false since he was in a nursing facility resulting from brain tumor and considering he died the next year (less than one year) it only makes sense that the attorney was willing to prepared it despite the capacity so as to give me the impression that she did not want to help mom since she (the attorney) had a hand in the action which was forced upon my mom and. has cost her so tremendously.

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