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Health
Instrument: Durable power of attorney of health care decisions (DPOAHCD)
What is it for?
A durable power of attorney for health care decisions (DPOAHCD) is a document that allows an individual (the “principal”) designates another as the principal’s agent for the purpose of making health care decisions when the principal is unable to do so.
What does it do?
Subject to any express limitations in the document, the DPOAHCD gives the agent the authority to do the following, provided they are consistent with the express wishes of the principal, to the extent these are known to the agent:
- 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;
- make all necessary arrangements for the principal 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 the physical, mental and emotional well being of the principal; and
- request, receive and review any information, verbal or written, regarding the principal’s 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. Kan. Stat. Ann. § 58-629.
All acts done by an agent pursuant to a durable power of attorney for health care decisions during any period of disability or incapacity of the principal have the same effect as if the principal had not lost capacity. Kan. Stat. Ann. § 58-626.
How does one make it?
A DPOAHCD must contain the words “this power of attorney for health care decisions shall not be affected by subsequent disability or incapacity of the principal” or “this power of attorney for health care decisions shall become effective upon the disability or incapacity of the principal,” or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability or incapacity. Kan. Stat. Ann. § 58-625.
A DPOAHCD may either be notarized or dated and signed in the presence of two witnesses at least 18 years of age, neither of whom may be the agent, related to the principal by blood, marriage or adoption, or have a financial conflict of interest. Kan. Stat. Ann. § 58-629.
When does it come into effect?
The agent’s authority to make health care decisions on behalf of the principal only becomes effective following an attending physician’s determination that the principal lacks capacity.
“Incapacitated person” is defined as an individual whose ability to receive and evaluate relevant information, or to effectively communicate decisions, or both, even with the use of assistive technologies or other supports, is impaired to the degree that the person lacks the capacity to manage the person’s estate, or to meet essential needs for the person’s physical health, safety or welfare. Kan. Stat. Ann. § 77-201.
How long does it last?
Presumably, until the principal’s death or revocation.
How does one end it?
Kansas’s DPOAHCD statute does not specify how the principal must revoke the DPOAHCD, but it does state it must be done voluntarily.
What does an example look like?
A DPOAHC must substantially conform to the form provided at Kan. Stat. Ann. § 58-632. A sample form developed by the Kansas Bar Association is available here.
What else should one know?
A court’s appointment of a guardian does not automatically terminate a prior DPOAHCD, although the guardian has the same right as the principal to revoke it. Kan. Stat. Ann. § 58-627.
Last updated April 2021
General
Instrument: Power of attorney (POA)
What is it for?
The power of attorney (POA) allows any person age 18 or older (the “principal”) to appoint either one or more “attorneys in fact” to make financial decisions on his or her behalf. The POA may be with regard to all matters, including both financial and health care decisions.
What does it do?
The POA may authorize the attorney in fact to make all decisions on behalf of the principal, or to make only certain specific decisions described in the POA. The attorney in fact’s broad authority under a general POA is described at Kan. Stat. Ann. § 58-654. The attorney in fact has a fiduciary obligation to the principal and must exercise his or her authority according to the principal’s instructions, in the principal’s best interest, in good faith, and prudently as well as avoid conflicts of interest.
How does one make it?
The POA must be signed by the principal, and dated and notarized. If the principal is physically unable to sign the POA but otherwise competent, the POA may be signed by an adult designee of the principal in the presence of the principal and at the specific direction of the principal expressed before a notary public.
In order for the POA to be “durable” it must contain specific language indicating this intent such as “This is a durable power of attorney and the authority of my attorney in fact shall not terminate if I become disabled or in the event of later uncertainty as to whether I am dead or alive,” or “This is a durable power of attorney and the authority of my attorney in fact, when effective, shall not terminate or be void or voidable if I am or become disabled or in the event of later uncertainty as to whether I am dead or alive.” Kan. Stat. Ann. § 58-652.
When does it come into effect?
The POA takes effect immediately unless it expressly states that it will come into effect either on a specified future date, the occurrence of a specified future event, or the existence of a specified condition which may occur in the future, such as incapacity.
How long does it last?
Generally the POA lasts until the principal’s death or the attorney in fact’s disqualification, although the POA may also terminate either upon a specified future date. Kan. Stat. Ann. § 58-657.
How does one end it?
The principal may either terminate or modify the POA by orally or in writing informing the attorney in fact or successor that the POA is terminated or modified, or when and under what circumstances it is terminated or modified; or by filing a written termination or modification in the office of the register of deeds in the county of the principal’s residence. Kan. Stat. Ann. § 58-657. Similarly, the attorney in fact may resign by notifying the principal.
What does an example look like?
A sample form developed by the Kansas Bar Association is available here.
What else should one know?
A third person, who acts in good faith, may rely and act on any POA executed by the principal without civil or criminal liability. Kan. Stat. Ann. § 58-658.
Kansas’s POA is not based on the Uniform Power of Attorney Act. Kansas had previously adopted the Uniform act but subsequently replaced it with the 2019 Kansas Power of Attorney Act.
Last updated April 2021