Kansas Q and A

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice. These answers are accurate as of September 2019.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?  

Yes, by appointing an agent.  The Kansas statute entitled Powers and Letters of Attorney allows you to appoint an agent to make health care decisions for you if you become incompetent to make those decisions yourself. “Health care” may include mental health care.  A recommended form for this purpose, called a Durable Power of Attorney for Health Care, is available here.  The form is not mandatory but is recommended.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

The Kansas statute does not allow you to write advance instructions for your psychiatric care in a freestanding document.  However, if you fill out a Durable Power of Attorney for Health Care, you may wish to specify how you would like your Attorney in fact to make decisions for you.  If there are particular matters that you wish your agent to make clear to your treating physicians, it is advisable to discuss them with him/her and document them on, or on pages attached to, the Durable Power of Attorney for Health Care form.

3.  Does anyone have to approve my advance instructions at the time I make them?  

No.  However, your form must be witnessed and signed by two adult witnesses at the same time as you sign it.  Your witnesses must be people other than employees of your health care provider, relatives, or those entitled to a portion of your estate upon death.  Your agent cannot act as a witness.  Alternatively, you may have the form notarized.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?

Yes, as outlined above.  Your agent must be someone other than an employee of your health care provider, unless also a relative of yours, or another member of the same religious community as you.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.  The general rule is that your agent can make any health care decision that you could have made if you were able to, including admitting you to a psychiatric hospital and/or refusing treatment on your behalf.  However, you should be aware that there are exceptions to this general rule: see question 9 below.  You may decide, alternatively to limit your agent’s authority to only certain decisions or types of decision: there is space on the suggested form for this option.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?   

The statute does not specify how your agent must act.  The best way to ensure that your agent follows your wishes is to discuss them thoroughly with the agent when you create the Power of Attorney for Health Care.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

Yes.  As explained above, it is not possible to write advance instructions only.  If you wish to create a Power of Attorney for Health Care, you must appoint an agent; the extent to which you also document your decisions is up to you.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.  All that is required is that your attending physician determines that you are incompetent to make treatment decisions yourself at that particular time.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?  

No.  However, your provider could decline to follow your agent’s instructions when Kansas law on involuntary treatment applies, or otherwise in an emergency.

10.  How long does my PAD remain valid?

Your Durable Power of Attorney for Health Care remains valid until revoked.  You may revoke it at any time, by amending your document and having it be witnessed in the same way as when you created it.  When you create the document, you may alternatively specify another procedure for revocation if you wish.