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Prepare Your Advance Directives Today!

Less than 25 percent of Americans have expressed their thoughts in writing about how they wish to be cared for at the end of life. Most would prefer to avoid the subject. However, it is encouraged to have these discussions now, so that you can make reasoned choices in advance, easing the stress on you and your family.

Living Will

In Kansas, there are two legal documents available to you in order to make sure your wishes are known. The first is called a “living will.” A living will is a written statement that expresses your desires with regard to health care treatment if you were to become mentally and/or physically incapable of expressing those desires. It can include, but need not be limited to, instructions concerning the termination of life support. This document only goes in to effect if two physicians have determined you are terminally ill.

Durable Powers of Attorney

The second is known as a “durable powers of attorney for health care decisions.” This written document allows you to authorize someone of your choosing to make health care decisions on your behalf in case you are unable to do so. Your agent would have the power to consent, refuse consent, or withdraw consent to any type of medical care, treatment, service, or procedure.

Advance Directive Document Preparation

While the Kansas legislature has adopted statutory forms for both the living will and the durable power of attorney for health care decisions, you may also be able to execute documents, which differ from these forms. An attorney may be able to prepare a document specifically for you, which incorporates your wishes and requests. With these documents it is possible to express what you care the most about, potentially relieving some of the stress or conflict that otherwise might arise if your family or friends had to decide what you would want done if you could not speak for yourself.

If you have questions concerning the religious issues involved in end-of-life decisions, it is best to consult your own spiritual adviser. Some religious groups have not taken a definite position on some end-of-life issues. In addition, some sub-groups within larger religious groups have differing opinions on these issues.

Living Will vs. Durable Powers of Attorney

Legally speaking, the main difference between a living will and durable powers of attorney for health care decisions is the amount of power given. For example, the durable powers of attorney for health care decisions can cover all medical decisions, while statutory living wills only apply to decisions regarding “life-sustaining treatment” in the event of a “terminal illness.” Additionally, a “terminal illness” may be specifically defined and may not include Alzheimer’s Disease, dementia, or coma, further limiting the power given under your living will.

A durable health care powers of attorney; however, can be effective any time after signing 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 regarding any illness, including those covered by your living will and beyond.

In fact, you may decide that it is in your best interest to have both documents prepared on your behalf. This may work well, as long as the two documents do not conflict. Remember, a living will and durable power of attorney for health care decisions provide you a way to maintain control of your health care. The living will can provide clear evidence to the physicians of your wishes concerning medical care and treatment ensuring your wishes are carried out, while the durable powers 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.

Durable Powers of Attorney Agent

If you decide that a durable powers of attorney for health care is in your best interest, you must next decide whom to pick as your health care agent. There are several factors to consider. First, your agent must be someone that you trust with your life. In addition, it will be helpful if your agent is sophisticated enough to manage the health care system.

Your health care agent may have to make sure that you receive proper care and treatment from hospitals and other health care institutions. As health care institutions are often large bureaucracies, it sometimes takes significant time and effort to make sure that the right level of care is being provided.

Your health care agent also needs to have the strength of character to make difficult decisions. It is not always easy to decide what form of medical care is best to have provided to someone else. Your agent may have to assess the risks and benefits of various medical services by obtaining accurate information, in order to try to keep you well. However, your agent may eventually have to have the ability to tell your physician to stop providing care, because they know with certainty that termination of life support is what you would want.

Finally, if possible, you should choose as your health care agent a person who lives near you. That way your agent can meet with your health care professionals as necessary. Communication is important, even as you draft your 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.

After You Make Your Advance Directives

Once you have your documents prepared by a knowledgeable estate planning lawyer, you should give a copy to all of your physicians, your agent, and anyone who may be called on to assist in your care, such as your family and friends. If you retain the originals, tell someone where the papers can be found, placing the originals in a secure place where they can be accessed without court intervention. By putting your decisions in writing today, you can maintain control of your health care decisions in the future.

Malissa L. Walden, Esq. ©2007

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