Living Wills & the Durable Power of Attorney for Health Care

 

Living Wills & the Durable Power of Attorney for Health Care

 

• What is it?

• Why do I need it?

• How do I make one?

 

Prepared & issued as a public service by the  Kansas Bar Association

Note:  Forms below are provided by Kansas Legal Services.

LIVING WILLS AND THE DURABLE POWER OF ATTORNEY FOR HEALTH CARE

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.

 

u 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 must be witnessed by two individuals over eighteen, and it is only effective if two physicians have determined that you are terminally ill.

 

u 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 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 that will require the agent to make decisions in accordance with your direction.

 

u 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 event of 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 decisions 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 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 and may disagree with those that do know your wishes.  The existence of the document can relieve some of the stress or conflict that otherwise might arise if family or 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 and 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.  Those 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 or 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.

 

u Remember, a Living Will and Durable Power of Attorney for Health Care Decisions provide you a way to maintain control of your health care.

For the Kansas Living Will form, with 2 witnesses (no notary) click here

For the Kansas Living Will form with a notary, click here.  

You can complete and print these forms.  They should be given to your primary health care provider.  Share copies with your family.

                                       LIVING WILL Declaration

Declaration made this ___________________ day of _______________________(month, year) I, ____________________________ being of sound mind, willfully and voluntarily make known my desire that my dying shall not be artificially prolonged under the circumstances set forth below, do hereby declare:

If at any time I should have an incurable injury, disease, or illness certified to be a terminal condition by two physicians who have personally examined me, one of whom shall be my attending physician, and the physicians have determined that my death will occur whether or not life-sustaining procedures are utilized and where the application of life-sustaining procedures would serve only to artificially prolong the dying process, I direct that such procedures be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care.

In the absence of my ability to give directions regarding the use of such life-sustaining procedures, it is my intention that this declaration shall be honored by my family and physician(s) as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences from such refusal. I understand the full import of this declaration and I am emotionally and mentally competent to make this declaration.

Signed ___________________________________

City, County and State of Residence                        

            ____________________________________

 

The declarant has been personally known to me and I believe him or her to be of sound mind. I did not sign the declarant’s signature above for or at the direction of the declarant. I am not related to the declarant by blood or marriage, entitled to any portion of the estate of the declarant according to the laws of intestate succession or under any will of declarant or codicil thereto, or directly financially responsible for declarant’s medical care.

 

Witness ________________________________

 

Witness ________________________________

 

Caution: Execution of this form revokes prior powers of attorney for health care decisions and will revoke a prior financial power of attorney if it included powers regarding health care.

 

DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS GENERAL STATEMENT OF AUTHORITY GRANTED.

 

I, __________________________________designate and appoint:

Name _________________________________________________

Address _______________________________________________

Telephone Number _____________________________________

to be my agent for health care decisions and pursuant to the language stated below, on behalf to:

(1) Consent, refuse consent, or withdraw consent to any care, treatment, service or procedure to maintain, diagnose or treat a physical or mental condition, and to make decisions about organ donation, autopsy and disposition of the body;

(2) Make all necessary arrangements at any hospital, psychiatric hospital or psychiatric treatment facility, hospice, nursing home or similar institution; to employ or discharge health care personnel to include physicians, psychiatrists, psychologists, dentists, nurses, therapists or any other person who is licensed, certified or otherwise authorized or permitted by the laws of this state to administer health care as the agent shall deem necessary for my physical, mental and emotional well-being; and

(3) Request, receive and review any information, verbal or written, regarding my personal affairs or physical or mental health including medical and hospital records and to execute any releases of other documents that may be required in order to obtain such information.

In exercising the grant of authority set forth above my agent for health care shall:

__________________________________________

(Here may be inserted any special instructions or statement of the principal’s desire to be followed by the agent in exercising the authority granted.)

LIMITATIONS OF AUTHORITY

(1) The powers of the agent herein shall be limited to the extent set out in writing in this durable power of attorney for health care decisions, and shall not include the power to revoke or invalidate any previously existing declaration made in accordance with the natural death act.

(2) The agent shall be prohibited from authorizing consent for the following items:

__________________________________________

__________________________________

(3) This durable power of attorney for health care decisions shall be subject to the additional following limitations:

_________________________________________

__________________________________________

EFFECTIVE TIME

This power of attorney for health care decisions shall become effective (immediately and shall not be affected by my subsequent disability or incapacity or upon the occurrence of my disability or incapacity.)

REVOCATION

Any durable power of attorney for health care decision I have previously made is thereby revoked. (This durable power of attorney for health care decision shall be revoked by an instrument in writing executed, witnessed or acknowledged in the same manner as required herein or set out another manner of revocation, if desired.)

EXECUTION

Executed this _____________, at _____________, Kansas_______________________________________

(Principal.)

This document must be: (1) witnessed by two individuals of lawful age who are not the agent, not related to the principal by blood, marriage or adoption, not entitled to any portion of principal’s estate and not financially responsible for principal’s health care: OR (2) acknowledged by a notary public.

 

_________________________________ 

Witness

_________________________________ 

Address

(or)

STATE OF _______________________________ )

COUNTY OF _____________________________)

This instrument was acknowledged before me          

on _______________________________________

(date)

by ______________________________________

                   (name of person)

__________________________________________      

              (signature of notary public)

 

(Seal, if any)

 

 

My appointment expires: ___________________

Copies

 

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

 

Lawyer Referral Service

1-800-928-3111

Contact the KBA Lawyer Referral Service for the name and number of a lawyer with experience in a particular area.

 

Lawyer Advice Line

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The Lawyer Advice Line will connect you with an

attorney who can offer you immediate legal advice about your legal problem, for a fee of $3.00 per minute, billed to your phone bill or credit card.

 

Pamphlets

As a public service of the KBA and the lawyers in your community, the following pamphlets are available in limited quantities through the KBA office, 1200 SW Harrison, Topeka, KS 66612-1806; 785-234-5696.

A Death in the Family…What should I do · Aging and the Law · Automobile Accident · Child Custody, Support & Visitation · Divorce: An IRS Perspective · Domestic Violence – A Practical Guide for Victims · Introducing Your Lawyer · Is a Living Trust for You · Joint Tenancy · Juror:  Your Rights and Duties · Living Wills & the Durable Power of Attorney for Health Care · Marriage & Divorce · Small Claims Court · Stop, Look & Check Before Buying a Home · Ways to Settle Your Dispute · Probate Avoidance Devices · What’s So Important About a Will?

Kansas Bar Association 12/10

 

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