As part of my estate planning practice I often review people’s existing estate plans as well as create new ones. People often ask me to review one particular document such as a will or trust or even their entire existing estate plan. In reviewing these documents I have seen a lot of poorly drafted, ineffectual or expired documents. Of course, my clients aren’t aware of these defects and if something happened and the documents were needed, they would be very surprised to find out the documents were flawed in a serious way.
One document that is a standard part of a comprehensive estate plan is an Advanced Health Care Directive (“AHCD”) or 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 (and some still use a modified version today). 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 the same thing as its updated version – except for one very important provision:
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 at 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? It means that if it’s more than seven years old, 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 do not wait until they are needed to find out that the hospital will not honor them and risk your quality of care. Take a moment, go find your important papers and take a look to see if there is an expiration clause. Many attorneys are willing to review your estate planning documents as a courtesy. Contact a local attorney if you have questions about whether your documents are still valid before it’s too late.
Eric S. Gullotta, JD, CPA, MS (Tax) specialies in estate planning and taxation law. His office is located at 232 West Napa Street, Suite A, in Sonoma. Contact him at 938.7234 or visit Gullottalaw.com.