Durable Power of Attorney for Health Care Decisions

(Kansas – Comprehensive Form)

[// GUIDANCE: This template is drafted to comply with Kansas requirements for a durable power of attorney for health-care decisions, including HIPAA authorization and end-of-life directives. Customize all bracketed items and review for client-specific modifications before execution.]

TABLE OF CONTENTS

I. Document Header
II. Definitions
III. Operative Provisions
    A. Appointment of Agent
    B. Scope of Health-Care Authority
    C. End-of-Life Decisions
    D. HIPAA Authorization
    E. Effectiveness, Duration, and Revocation
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block & Notarial Certificate

I. DOCUMENT HEADER

Durable Power of Attorney for Health Care Decisions
Principal: [PRINCIPAL LEGAL NAME], residing at [PRINCIPAL ADDRESS] (“Principal”)
Primary Agent: [AGENT LEGAL NAME], residing at [AGENT ADDRESS] (“Agent”)
Alternate Agent(s): [ALTERNATE AGENT NAME(S)] (each an “Alternate Agent”)

This Durable Power of Attorney for Health Care Decisions (this “Agreement”) is made effective as of [EFFECTIVE DATE] (the “Effective Date”) pursuant to the laws of the State of Kansas governing health-care powers of attorney (the “Governing Law”).

Recitals
A. Principal desires to ensure that health-care decisions are made in accordance with Principal’s wishes if Principal becomes unable to make or communicate informed decisions.
B. Principal wishes to appoint an Agent, and if necessary one or more Alternate Agents, to act on Principal’s behalf in accordance with Kansas law.

II. DEFINITIONS

For purposes of this Agreement, capitalized terms have the meanings set forth below:

1. “Advance Directive” means any written statement of Principal’s wishes regarding medical treatment, including this Agreement and any separately executed living will.
2. “End-of-Life Decision” means decisions respecting life-prolonging procedures, including artificial nutrition, hydration, and resuscitation.
3. “Good Faith” means honesty in fact and the observance of reasonable standards of health-care decision-making under the circumstances.
4. “Health-Care” means any care, service, or treatment to maintain, diagnose, or otherwise affect Principal’s physical or mental condition.
5. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder, including 45 C.F.R. Parts 160 and 164.
6. “Incapacitated” means the inability, as determined by a licensed physician, to receive and evaluate information or make or communicate health-care decisions.
7. “Protected Health Information” or “PHI” has the same meaning as in 45 C.F.R. § 160.103.

[// GUIDANCE: Add any other defined terms your client or facility policies require.]

III. OPERATIVE PROVISIONS

A. Appointment of Agent

1. Principal hereby appoints the Agent, with full power to act alone, as Principal’s true and lawful attorney-in-fact for Health-Care decisions.
2. If the Agent is unwilling, unable, or disqualified to serve, each Alternate Agent is appointed successively in the order listed above.

B. Scope of Health-Care Authority

Subject to any limitations in Section III (C) or elsewhere herein, the Agent is authorized to:
a. Consent to, refuse, or withdraw any Health-Care, including but not limited to surgery, hospitalization, medication, psychiatric treatment, and nursing home placement;
b. Apply for, transfer, or discharge Principal from any medical facility;
c. Execute documents required to obtain or withhold Health-Care;
d. Access all medical records (paper or electronic) necessary for informed decision-making;
e. Employ and discharge Health-Care providers;
f. Make anatomical gifts, authorize organ or tissue donation, or decline the same;
g. Authorize an autopsy and direct disposition of remains; and
h. Take any other action reasonably necessary to effectuate the intent of this Agreement.

C. End-of-Life Decisions

1. Consistent with Principal’s moral, religious, and personal preferences set forth below, the Agent is expressly authorized to make End-of-Life Decisions, including the withholding or withdrawal of life-sustaining treatment.
2. Principal’s Specific Instructions (check, complete, or attach additional sheets):
   • Artificial Nutrition & Hydration:
   ☐ Administer under all circumstances
   ☐ Withhold/withdraw if death is imminent or in a persistent vegetative state
   ☐ Other: [INSERT]
   • Cardiopulmonary Resuscitation (CPR):
   ☐ Attempt resuscitation (Full Code)
   ☐ Do Not Resuscitate (DNR)
   • Comfort Care: Principal requests all measures to relieve pain and ensure dignity.

[// GUIDANCE: Kansas recognizes separate “Do Not Resuscitate” orders; attach or reference facility-specific forms as needed.]

D. HIPAA Authorization

Pursuant to 45 C.F.R. § 164.508(c):
1. Principal authorizes any Health-Care provider, insurer, or other covered entity to disclose PHI to the Agent and Alternate Agent(s).
2. This authorization is effective immediately and remains effective until revoked in writing, even after Principal’s death, to facilitate organ donation, autopsy, or disposition of remains.

E. Effectiveness, Duration, and Revocation

1. This Agreement is durable and shall:
   a. Take effect (choose one):
   ☐ Immediately upon execution; or
   ☐ Only upon a written determination of Incapacity by a licensed physician.
   b. Remain in effect until revoked or terminated pursuant to Governing Law.
2. Principal may revoke this Agreement in whole or in part at any time by:
   a. A signed, dated writing;
   b. An oral statement in the presence of two adult witnesses; or
   c. Any act evidencing intent to revoke, such as tearing or defacing the document.
3. Divorce or legal separation from the Agent automatically revokes the Agent’s authority unless expressly reaffirmed.

IV. REPRESENTATIONS & WARRANTIES

1. Principal represents that:
   a. Principal is at least 18 years of age, of sound mind, and executing this Agreement voluntarily and without duress.
   b. No prior power of attorney for Health-Care remains in effect unless expressly referenced herein.
2. Agent represents, by signing the Acceptance below, that Agent:
   a. Is willing and eligible to serve;
   b. Will act in Good Faith and in the best interests of Principal; and
   c. Will comply with Governing Law and all applicable Advance Directives.

V. COVENANTS & RESTRICTIONS

1. Agent shall:
   a. Consult with Health-Care providers to obtain complete information;
   b. Consider Principal’s expressed wishes, religious beliefs, moral convictions, and best interests;
   c. Keep reasonably detailed records of decisions made under this Agreement; and
   d. Provide information to family members as consistent with Principal’s wishes and HIPAA.
2. Agent shall not:
   a. Authorize voluntary admission to a state mental health facility for more than [NUMBER] days without court order;
   b. Disclaim Principal’s property interest or make gifts except for anatomical donations as authorized herein; or
   c. Exercise any power in a manner that conflicts with Principal’s known intentions.

VI. DEFAULT & REMEDIES

1. Events of Default:
   a. Agent’s refusal or failure to act;
   b. Agent’s loss of capacity, death, or resignation without notice;
   c. Determination by a court or two licensed physicians of Agent’s misconduct or incapacity.
2. Upon Default, authority automatically passes to the next available Alternate Agent.
3. Any interested person may petition the state probate court for:
   a. Removal of the Agent;
   b. Appointment of a guardian; or
   c. Injunctive relief to prevent irreparable harm.
4. Attorney Fees: The court may award reasonable attorney fees and costs to the prevailing party in any action to enforce or interpret this Agreement.

VII. RISK ALLOCATION

1. Indemnification: Principal shall indemnify and hold harmless the Agent and Alternate Agent(s) from any liability, expense, or claim arising from any act or omission undertaken in Good Faith under this Agreement.
2. Limitation of Liability: No Agent shall be liable for monetary damages except for acts or omissions constituting bad faith, gross negligence, or intentional misconduct.
3. Insurance: Principal encourages each Agent to verify coverage under any applicable professional or personal liability insurance.
4. Force Majeure: An Agent shall not be deemed in breach of this Agreement for failure to act when prevented by circumstances beyond the Agent’s reasonable control, including natural disasters or unavailability of medical facilities.

VIII. DISPUTE RESOLUTION

1. Governing Law: This Agreement and any dispute arising hereunder shall be governed by the laws of the State of Kansas without regard to conflict-of-law principles.
2. Forum Selection: The parties consent to the exclusive jurisdiction of the state probate court located in [COUNTY], Kansas.
3. Arbitration: Not applicable.
4. Jury Waiver: Not applicable.
5. Injunctive Relief: Nothing herein shall limit the right of any party to seek emergency injunctive or declaratory relief concerning Health-Care decisions.

IX. GENERAL PROVISIONS

1. Amendment & Waiver: This Agreement may be amended only by a writing signed by Principal and acknowledged before a notary public. No waiver shall be effective unless in writing and signed by the waiving party.
2. Assignment & Delegation: The authority granted herein is personal to the Agent and may not be assigned or delegated except to an Alternate Agent as provided herein.
3. Successors & Assigns: This Agreement binds and benefits the Principal, the Agent(s), and their respective heirs, representatives, and permitted assigns.
4. Severability: If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.
5. Integration: This Agreement constitutes the entire understanding of the parties with respect to Health-Care decisions and supersedes all prior oral or written powers of attorney on the same subject matter.
6. Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together constitute one instrument.
7. Electronic Signatures: Facsimile, PDF, and electronic signatures shall be deemed originals for all purposes.

X. EXECUTION BLOCK & NOTARIAL CERTIFICATE

1. Principal

[PRINCIPAL LEGAL NAME]
Date: ______

2. Agent Acceptance

I, the undersigned Agent, accept the appointment and agree to act in accordance with this Agreement and applicable law.

[AGENT LEGAL NAME], Agent
Date: ______

3. Alternate Agent Acceptance(s)

[ALTERNATE AGENT NAME], Alternate Agent
Date: ______

(Duplicate acceptance blocks as needed for each Alternate Agent.)

4. Notarial Acknowledgment

State of Kansas )
County of ____ ) ss.

On this _ day of _, 20__, before me, ____, a Notary Public in and for said State, personally appeared [PRINCIPAL LEGAL NAME], known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument, and acknowledged that (he/she) executed the same for the purposes therein contained.

In witness whereof, I hereunto set my hand and official seal.

Notary Public
My Commission Expires: ____

[// GUIDANCE:
1. File the executed original with Principal’s medical records and provide copies to each Agent and primary Health-Care provider.
2. Encourage clients to carry a wallet card referencing the existence of this document.
3. Review for consistency with any existing living will or DNR orders.]