Living Wills & Durable Power of Attorney

Tuesday, September 15th, 2009 | provided by the Kansas Bar Association

Who controls your health care if you are not able to make decisions yourself? Would you like to maintain control?

Kansas statutes make two legal documents available to you to make sure your wishes are followed. One is known as a "living will" or natural death act declaration. The second is the durable power of attorney for health care decisions or health care power of attorney. You may also be able to execute documents which differ from statutory forms. These so-called "common-law" forms can be discussed with your lawyer.

What is a living will?

A statutory living will is a written statement of your wishes regarding your medical treatment if you are in a terminal condition. It is only effective if two physicians have determined you are terminally ill.

What is a durable power of attorney for health care decisions?

A durable power of attorney for health care decisions is a written document in which you authorize someone whom you name (your "agent" or "attorney-in-fact") to make health care decisions for you in the event that you are unable to speak for yourself. Health care decisions include the power to consent, refuse consent or withdraw consent to any type of medical care, treatment, service or procedure. In the document you can give specific instructions regarding your health care which will require the agent to make decisions in accordance with your direction.

What is the difference between a health care power of attorney and a "living will"?

Power of attorney can cover all medical decisions

Statutory living wills only apply to decisions regarding "life-sustaining treatment" in the even tof a "terminal illness." A terminal illness does not include Alzheimer's disease, dementia or coma. A durable health care power of attorney can be effective any time or, if you want, at any time you are unable to make or communicate a decision. The agent you appoint can make any decision you direct, including decision about health care beyond those covered by your living will. For example, the agent under a durable power of attorney can make decisions about care if you are in a persistent vegetative state, but are not terminally ill.

Power of attorney appoints an agent

Through a durable power of attorney, you appoint someone to act on your behalf. That person can weigh the pros and cons of treatment decisions in accordance with your directions. Unless you limit the powers, the agent can hire physicians and other health care providers, decide where you will receive treatment, and make decisions about the full range of medical decisions from routine care to decisions about life-sustaining treatment.

Do I lose control by appointing an agent?

You can write your living will and your durable power of attorney to include specific limitations about anything you want to have done or want to avoid having done. You can express your wishes about whatever you care most about. You can terminate your health care power of attorney at any time by notifying your agent and health care provider. You can terminate the power of attorney verbally, but it is best to do so in writing and to destroy the original document.

Why do I need a living will or health care power of attorney?

Without these documents, your wishes may not be followed. In some situations, a guardian may be limited in making some decisions, especially those regarding life-sustaining treatment when you are in a vegetative state but not terminally ill. In addition, the guardian appointed by the court may have no idea what your wishes are. The existence of the documents can relieve some of the stress or conflict that otherwise might arise if family and friends have to decide on their own what you would want done when you cannot speak for yourself.

Do I need both the living will and the durable power of attorney?

It is recommended you have both documents. The living will provides clear evidence of your wishes concerning medical care and treatment and will help ensure that the agent the physicians carry out your wishes. The durable power of attorney for health care gives your agent the authority to take action on your behalf and to carry out your directions for health care, without the delays of court proceedings.

How do I make a living will and durable power of attorney for health care?

The legislature has adopted statutory forms for both the living will and the durable power of attorney. The forms are included in this pamphlet. In addition, a lawyer can draft a document which specifically incorporates your wishes and may be more detailed. Take time to consider all the possibilities and seek competent advice so the documents you develop meet your special needs.

Once I have the documents what do I do?

Even as you draft the documents you should talk about your values and wishes with your physician(s), anyone you will appoint as an agent or alternate agent, and those who are close to you. You should give a copy of the documents to all of your physicians, your agent under the durable power of attorney, and your family and friends. If you retain the originals tell someone where the papers can be found. Place the original in a secure place which someone can access without court intervention.

Remember, a living will and durable power of attorney health care decisions provide you a way to maintain control of your health care.

 

This information is based on Kansas law and is published by the Kansas Bar Association to provide general public inforamtion, not specific legal advice.  The facts involved in a specific case determine the application of the law.