Incapacity Documents in Other States

As winter approaches, I’ve been asked by clients who are going to warmer climates whether they should have additional incapacity documents drafted in the state where they will stay most of the winter. The first thing I tell them is to make sure their Massachusetts incapacity documents are current. They may want to change their health care proxy or perhaps the contact information for people listed in those documents has changed.

Once we address the Massachusetts documents and make sure they are current and properly executed, then I talk about the issue of other jurisdictions. If you are just going to another state for a few days or a few weeks, then chances are you do not need to have any additional documents drafted for that state. Generally speaking, another state will honor your documents if you are on a trip and have an accident. There are exceptions, and I discuss those with my clients when they tell me the exact state or states they are visiting. Remember that if you are traveling, you should have a current copy of the Emergency Contact Card behind your license in your wallet.

What happens if you are actually living in another state for months? Attorneys differ on whether or not you should have a second set of documents. The disagreement stems from the fact that if both sets of documents do not comply with both state requirements, then only the ones with the most current date will be followed. The reason the most currently-dated documents will be followed is because there is an assumption that those documents reflect your current wishes and take precedent over the older documents. That may not be the case at all, but that is what will be presumed about the documents. There are several ways to rectify this potential problem. One way is to make sure that both sets of documents follow the execution requirements of both states. For example, Massachusetts requires two witnesses and a notary for most incapacity documents. If the state you are visiting requires three, then it’s easy enough to execute your Massachusetts documents with three, instead of two, witnesses. If you can’t fulfill both states’ requirements or if a state is silent about its requirements, then another possible way to address this issue is to include a notarized letter with your documents, stating that both documents reflect your current wishes, even though their dates may be different.

If you want to find out the best course of action for the state you are visiting, contact me today. Because I am entirely virtual, I can meet with you via phone, email, or Skype/Zoom, even if you have already gone on your travels.