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Living Will and Durable Power of Attorney

Living Will

Durable Power of Attorney

Who controls your health if you are unable to make decisions yourself? Would you like to maintain control? 

Kansas Laws 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.

What is a living will? 

A 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 who you name (your “agent”) to make health care decisions for you in the event you are unable to speak for yourself. In the Durable Power of Attorney document you can give specific instructions which will require the agent to make decisions following your wishes. 

What is the difference between a durable power of attorney for health care decisions and a living will?

Power of Attorney Can Cover All Medical Decisions 

Living wills only apply to decisions regarding “life sustaining treatment” in the event of a “terminal illness.” A durable health care power of attorney can be effective any time or, if you want, at anytime you are unable to make or communicate a decision. The agent you appoint can make any decision you allow, including decisions about health care other than 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 or coma, 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 wishes. 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. You can express your wishes about whatever you care most about. You can terminate your durable power of attorney at any time by notifying your agent and health care provider. You should revoke your durable power of attorney in writing and have it witnessed or notarized. 

Do I need a living will or durable power of attorney for health care decisions?

Without these documents, your wishes may not be followed. In some situations a guardian will be appointed to you, but the guardian may be limited in making some decisions, especially those regarding life-sustaining treatment if you are in a vegetative state or coma, but not terminally ill. In addition, the guardian appointed by the court may have no idea what your wishes are. 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 a living will and durable power of attorney for health care decisions?

It is recommended you have both documents. The living will provides clear evidence of your wishes and will help ensure that the agent and physicians carry out your wishes. The durable power of attorney for health care allows immediate action without the delays of court proceedings in cases where the living will does not apply. If you do not have a durable power of attorney, health care decision-making may be made by someone other than the person you have chosen. 

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 durable power of attorney. These can be found in the Kansas Statutes, which are available in many public libraries. The living will is at K.S.A. 65-18, 103 (Volume 5, pages 264-65 of the Kansas Statutes Annotated). The durable power of attorney for health care decisions is at K.S.A. 58-632 (Volume 4-4A Supplement to Kansas Statutes Annotated). Copies are also available in kiosks throughout the hospital.  

In addition, an attorney can draft a document, which specifically incorporates your wishes. 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, 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. 

Optional Instructions – Living Will 

You can also include additional instructions to specify certain procedures or treatments that you wish to receive, to refuse, or limit in some way. 

What are Stormont-Vail’s policies regarding living wills and durable power of attorney?

If Stormont-Vail is aware of a living will or durable power of attorney, steps will be taken to alert your physician. You should discuss your treatment concerns with your physician so that he/she is aware of your wishes. If you have ethical concerns about the treatment course, information is available about the hospital’s Ethics Committee. Stormont-Vail does not discriminate because a person does or does not have a living will or durable power of attorney for health care. 

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

If you have further questions, or would like more information about health care decision-making, please refer to the list below for additional resources. 

Stormont-Vail HealthWise 55 Resource Center
1500 S.W. 10th Ave.
Topeka, Kansas 66604
(785) 354-6787  

Kansas Legal Services For Senior Citizens
712 S. Kansas Ave., Suite 201
Topeka, Kansas 66603
(785) 233-2217  

Kansas Bar Association
1200 S.W. Harrison
Topeka, Kansas 66612
(785) 234-5696  

Kansas Health Ethics
5900 E. Central, Suite 101
Wichita, Kansas 67208
(316) 684-1991   


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