ADVANCE DIRECTIVES ATTORNEY
IN NEWTON, KANSAS

Though only one-third of Americans have a will or trust in place to care for their loved ones after they’re gone, virtually everyone understands the need to take care of those you leave behind. But the person we often overlook is ourselves. 

What happens if you’re suddenly incapacitated? Who is going to make decisions for you? How are you going to convey your wishes to those caring for you?

No one really likes to contemplate end-of-life situations – finding yourself in a hospital bed fighting for your life but unable to express your wishes for medical treatment: “Why do I have these tubes coming in and out of me? I’m not sure I want this.”

This is where an advance healthcare directive comes into play. You don’t have to leave your fate in the hands of others. You can put in writing exactly which treatments you will accept and which you won’t if you end up incapacitated and unable to speak for yourself. If you’re in or around Newton, Kansas, including the nearby communities of Wichita, Hutchinson, El Dorado, McPherson, or Hillsboro, contact Cornerstone Law, LLC, to help you plan for your future by creating an advance directive to round out your estate planning goals. I will meet with you, listen to your concerns and wishes, and help you create the legal documents you need.

WHAT IS AN ADVANCE DIRECTIVE?

Simply put, an advance directive states your health care/medical treatment preferences in advance and leaves directions to an agent you appoint to carry out those preferences for you. In Kansas, the proper term for an advance directive is a durable power of attorney for health care.

In general, a power of attorney (POA) grants someone you name – who then becomes known as your agent or attorney-in-fact – to carry out specific tasks you assign to them. You may, for instance, grant a power of attorney to someone to manage your commercial properties while you’ve away in Europe for business or pleasure. Once you return, the power returns to you.

You can also delegate someone through a power of attorney to conduct your everyday business – paying bills, managing your bank account and assets – should you become incapacitated. This is similar to a power of attorney for health care, except the latter delegates authority in your name only in regard to medical and health care decisions.

A general power of attorney will lapse upon the grantor’s incapacitation or death unless it so specifies in writing that it is to continue in the event either of those circumstances occur. Once language is added to extend the POA to incapacitation and death, it becomes durable. 

DURABLE POWER OF ATTORNEY

Thus, a durable power of attorney for health care – or for any other purpose – continues, or in reality, commences upon the grantor’s incapacitation. In a health care POA, the authority of the agent is granted only in times of incapacitation – when you cannot speak for yourself.

An advance directive is also sometimes called a living will, but a living will does not grant authority to anyone to make medical decisions for you. It merely states your preferences. A power of attorney is needed to grant that authority. Thus, a durable healthcare power of attorney is the one document that you need to ensure your wishes are carried out. It can name an agent and specify your treatment preferences.

CHOICES AND PREFERENCES YOU CAN MAKE

In popular interpretations of an advance directive, many people equate it with “do not resuscitate” orders. This is clearly one of the options you can specify in an advance health care directive. In addition, you can also specify your decisions on:

• The use of equipment such as dialysis machines for your kidneys or ventilators to help you breathe

• Foods or liquids supplied through an IV or tube in your stomach should you be unable to eat

• Treatment for pain, suffering, nausea, or anxiety through drugs (comfort or palliative care)

• Donation of your organs after death

• Whether you want a burial or cremation

CHOOSING AN AGENT IN YOUR DIRECTIVE

In Kansas, the person you appoint as your agent in your health care directive must be at least 18 years of age and of sound mind. You cannot, however, appoint anyone who is associated with providing your health care unless that person Is related by blood or marriage.

The person you appoint should agree with your decisions and be in lockstep with your end-of-life choices. You don’t want someone who will have second thoughts about carrying out your wishes. Trust is the operative word. 

Kansas allows the naming of joint agents in case one person is unwilling or unable to carry out the duties. However, this can also lead to arguments between the two when it comes time to convey your choices to the doctors attending you. It’s probably better to settle on the one you trust the most.

FORMALIZING THE DIRECTIVE– IS IT PERMANENT?

When you create your durable health care power of attorney, it must be witnessed by two adults not related to you. Once you’ve completed the document, you should give copies to family members, close friends, certainly the agent you appoint, and even your family physician. Copies should be readily available once a crisis occurs, not locked away in a safe deposit box.

UPDATING YOUR DIRECTIVE

Your life circumstances may change, necessitating an update of your directive. You may have remarried, or your agent may have moved to another state. Any number of reasons can require a change to your directive. Accordingly, our advance directive can be revoked at any time and then rewritten, provided you are still considered competent – of sound mind – when you make those changes. 

It’s a good idea to review your directive annually to make sure the document still reflects your bedrock choices, which may have shifted over time.