Drafting Health Care Advance Directives in a Rapidly Changing Legal and Sociological Environment, 0917 KSBJ, 86 J. Kan. Bar Assn 8, 32 (2017)

Author:Timothy P. O'Sullivan, J.
 
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DRAFTING HEALTH CARE ADVANCE DIRECTIVES IN A RAPIDLY CHANGING LEGAL AND SOCIOLOGICAL ENVIRONMENT

86 J. Kan. Bar Assn 8, 32 (2017)

Kansas Bar Journal

September, 2017

          Timothy P. O'Sullivan, J.

         An advance directive is a legal document, executed by a declarant pursuant to state law, authorizing or instructing others to make health care decisions on the declarant's behalf in the event the declarant possesses insufficient capacity to make such decisions.1 Subject to constitutionally permissible statutory or common law limitations, by executing an advance directive, a declarant can make his or her wishes known and authorize a third party to make decisions regarding any aspect of the declarant's health care, including whether to withhold or withdraw life-sustaining procedures (LSPs).2

         There are three popular types of advance directives in the United States today: instruction directives, proxy directives, and directives that combine aspects of both instruction and proxy directives.3 An instruction directive is one in which a declarant leaves instructions for future care without appointing an agent to carry out those instructions.4 A living will is an example of an instruction directive.5 A proxy directive is one in which the declarant is silent, or nearly silent, about the declarant's wishes, instead designating an individual to make all or a portion of the declarant's health care decisions.6 A durable power of attorney for health care decisions is an example of a proxy directive.7 In most states, a declarant can execute a third type of directive, a hybrid directive combining in one instrument the functions of both instruction and proxy directives, appointing a decision maker while also providing guidance or direction to the decision maker with respect to certain health care decisions.8

         Kansas was one of the early states to enact advance directive statutes. Those statutes, discussed below, provide for health care powers of attorney, living wills, and do-not-resuscitate directives (DNRs). Although separate and distinct statutes apply to the initial two types of advance directives, there appears to be no legal impediment to combining such advance directives into a hybrid directive, the third type of advance directive, provided each separate type of advance directive combined therein, if considered separately, is in compliance with the applicable Kansas statute. However, as the types of advance directives serve separate and distinct purposes, as well as being applicable in different situations, they are typically not combined in one instrument by estate planning and elder law practitioners.

         Kansas advance directive statutes are two to four decades removed from their enactment. Consequently, they have become, to use a colloquial phrase, a little "long in the tooth." They simply are not reflective of subsequent societal and medical trends in many respects, fail to embody the comprehensive, cohesive and advanced provisions in more progressive statutes subsequently enacted in other states, and are—at least in one important respect discussed in this article with regard to living wills—not consonant with later judicial decisions imposing constitutional limitations on their import.

         The purpose of this article is to alert practitioners of such trends and subsequent legal developments, as well as provide practical tips to draft legally viable advance directives that more fully address and implement their clients' health and personal care desires at a time they are no longer competent to self-direct their personal and medical care. As a preface, it should be noted that due to recently issued federal regulations, medical costs occasioned by individuals who discuss advance directives with their personal physicians are covered under Medicare, effective January 1, 2016.9

         A. HEALTH CARE DURABLE POWER OF ATTORNEY

         The Kansas Durable Power of Attorney for Health Care Act ("the Act") authorizes a person to appoint an attorney-in-fact (hereinafter "agent") to make health care decisions on such person's behalf10 This directive is effectuated under the provisions of an instrument known as a "durable power of attorney for health care decisions."11 Pursuant to the Act, an agent has a duty to act consistent with the principal's expressed desires.12 As is the case with an agent under a financial durable power of attorney the health care agent has a fiduciary duty to act solely in the principal's best interests.13 Further, an agent under such power of attorney cannot revoke or invalidate a living will nor act in a manner inconsistent therewith.14

         The health care agent can be authorized to determine all aspects of the principal's personal and medical care should the principal incur a legal disability rendering the principal incapable of making such decisions.15 To be fully efficacious, the advance directive should authorize the agent, on behalf of the principal, to comprehensively make all medical and psychiatric decisions, as well as additional personal and medical care which can be statutorily authorized and delegated to an agent.16 What is important for subsequent discussion on living wills is that there is no statutory limitation on the principal's ability to authorize the health care agent to proscribe life-sustaining medical care conditioned upon the principal's remaining life expectancy, such as being limited to a terminal condition of the principal, as there is with respect to a declarant under Kansas' living will statutes.

         Such medical authorization normally avoids the need for the judicial appointment of a legal guardian who otherwise would be required to make personal and medical care decisions for a disabled individual. However, in the event the principal nonetheless refuses or otherwise fails to comply with the agent's directions regarding such care, thereby posing a significant threat to the principal's health or well-being, the appointment of a guardian able to legally impose measures or restrictions conducive to such individual's health or well-being may nonetheless prove necessary17

         A durable power of attorney for health care decisions may also authorize the agent following the death of the principal to determine burial and funeral arrangements, consent to autopsies, and make organ donations (although organ donations can also be authorized in a separate document, as well as on the back of a driver's license).18

         As under a financial durable power of attorney, a durable power of attorney for health care decisions may be made either "springing" or "non-springing," i.e., either effective only upon the principal's subsequent disability, or effective immediately and remaining continuously effective notwithstanding a subsequent disability of the principal, respectively[19] Although authority granted immediately to an agent under a "non-springing" power of attorney would not be expected to be exercised until such time as there occurred a subsequent disability of the principal, it is nonetheless typically desirable to make such instruments "non-springing" in nature.

         One rationale for reposing such immediate authority in the agent to make health care decisions on the principal's behalf is to avoid the undesirable "Catch-22" situation of a health care agent not yet being possessed of the authority to procure the medical information necessary to establish the disability of the principal that is the triggering event for such authority20 Such possibility could be avoided in an otherwise "springing" health care power of attorney by reposing immediate limited authority of a "non-springing" nature in the agent related strictly to the procurement of such medical information on the principal.

         In addition, providing for the immediate efficacy of such authority has the often salutary aspect of permitting the agent, provided such authority is properly authorized in the instrument, to be able to procure medical information concerning the principal at any time from a physician, irrespective of any lack of capacity of the principal, and to discuss the principal's medical situation with medical personnel, without the principal having to have separately executed a HIPPA authorization.21 Further, health care decisions, as contrasted with financial management decisions, are typically far more time-sensitive. Thus, a delay in securing a "springing" determination of a disability prior to being able to make a health care decision could be hazardous to the principal's health.22

         Finally, making the power of attorney "non-springing" provides for a seamless transition, without need of a medical determination of the disability of the principal, in devolving desired health care authority in the agent while posing no detriment to the principal's ability to make medical decisions.23 No medical provider would be expected to request an agent to make...

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