28 Oct Ask Alice November 2021

ASK ALICE

Your questions answered
about Advance Care Planning

This month’s topic: More than one home: Do I need multiple ADs?

Dear Alice,

I live part of the year in another state and part of the year in Vermont.  And even when I am living in Vermont, I spend significant portions of time in New Hampshire and New York.  I am starting to think about my advance directive, and am wondering about which state’s form to use. Or should I do multiple ADs, one for each state I spend a significant amount of time in?  

                   Thanks,  the Peripatetic Planner    

Dear Peripatetic Planner,

This is a question I have often wondered about myself, so I emailed the experts at Vermont Ethics Network (VEN) to get their advice.

Although some on-line commentators suggest having an advance directive for every state you spend a significant amount of time in, VEN strongly advises against this practice, for a couple of reasons. First, a legal document completed at a later date will often supersede earlier documents covering the same topic, so you may actually invalidate your AD in your state of primary residence by subsequently completing another AD in another state.  And second, even if the multiple ADs are all deemed legally valid, multiple documents are often a cause of confusion and delay.  Particularly in a tense or urgent situation, having to consult multiple documents and decide which one controls is just the kind of complicating factor we would all like to avoid if possible. 

Instead, VEN suggests completing an AD for your state of primary residence, which is the state you vote in and spend the most time in.  In doing so, however, you may want to review and keep in mind the legal rules relating to ADs in the other state or states in which you spend significant amounts of time. 

In particular, it’s a good idea to look at the signing and witnessing requirements for ADs in those states.  The majority of states, including Vermont, require two witnesses.  The next largest group of states require either two witnesses or a notary, which means that if your AD satisfies the Vermont requirement, it will satisfy the requirements of all these states as well.  However, several states – including North and South Carolina and West Virginia – require two witnesses and a notary.  Thus, if you want to make sure your AD is valid in those states, you will need to have your signature notarized as well as witnessed.  For a good summary of the pertinent signing/witnessing requirements of the various states, VEN recommends www.findlaw.com/estate/living-will/living-wills-state-laws.html. 

There are a couple of less common but more substantive differences in state laws. For example, quite a few states consider ADs invalid and will override expressed preferences if the patient is pregnant. And in a number of states, including New Hampshire, agents must be given express permission in a directive to consent for the withdrawal of a feeding tube.  The Vermont AD forms we use have been adapted to include this express permission due to the frequency of VT directives being used in NH, but similar situations may arise in other states as well.  These types of differences are also addressed in the findlaw.com document cited above.

When you have your completed directive, be sure to provide copies to your agents, primary care doctor, and local hospitals, regardless of the state in which they are located.  And be sure to register your directive with the US Living Will Registry (USLWR) and put the stickers they give you on your driver’s license and health insurance cards.  Note:  The VT Advance Directive Registry (VADR) is a part of the USLWR, so if you are a Vermont resident and registered with the VADR, you don’t need to also register with the USLWR, as you are already in it. 

I am very grateful to VEN, and to Taylor Murray, VEN’s Advance Care Planning Program Manager, for help with this column, and for everything they do.  And I highly recommend you check out VEN’s very helpful website, for all kinds of useful information. 

                       Best wishes,   Alice   

Please contact Ruth Nangeroni, Taking Steps Brattleboro Coordinator, 802-257-0775, ext. 101, or ruth.nangeroni@brattleborohospice.org, for information about Advance Care Planning.

Till next month, folks.  Please send your questions to Alice via info@brattleborohospice.org.