Before you decide whether you need a living will in your estate plan, it’s important to understand the limited scope of the document and what it accomplishes — as well as what it does not accomplish. If you make a living will, it is only one part of your estate plan. Your estate planning attorney should ensure that your plan includes all the legal documents necessary to ensure that your wishes are followed if you become incapacitated or pass away.
In K.S.A. 65-28,101, the Kansas legislature recognized the fundamental right of persons over age 18 to control decisions relating to their medical care. In furtherance of that right, the statute provides that an individual may make a written declaration concerning the use of life-sustaining procedures when the person has a terminal condition. The declaration becomes effective if the individual can no longer actively participate in decisions relating to their medical care.
This written declaration is the document commonly referred to as a living will. It is also sometimes referred to as an advance directive. A living will is totally unrelated to the other will in your estate plan, called your Last Will and Testament.
If you make a living will under these statutory provisions, your declaration addresses only withholding or withdrawing life-sustaining procedures if you become terminally ill and cannot participate actively in making your own decision. The effect of a living will is limited to those specific circumstances. As long as you can participate in making those decisions, the provisions of your living will do not go into effect.
K.S.A. 65-28,103 provides that for a living will to be legally valid, it must be in writing, dated, and signed by the person making it or by another person in the declarant’s presence and at their direction. The signing must occur in the presence of two or more witnesses at least 18 years old, neither of whom is related to the declarant by blood or marriage, entitled to inherit from the declarant (through estate documents or intestacy), or financially responsible for the declarant’s medical care. Instead of two witnesses, the document may be signed and acknowledged before a notary public.
The statute provides a form that can be followed and requires any declaration to be substantially in that form, but the declaration may include other directions as well. If you wish to include other provisions in your living will, you should talk with an experienced estate planning attorney. Your lawyer makes certain that your document fully reflects your wishes and is valid under Kansas law.
Whether to include a living will in your estate plan is a very personal decision that only you can make. If you become incapacitated by a terminal illness, medical professionals are ethically required to take life-sustaining medical measures to keep you alive. If you do not wish to have those procedures used, a living will is the way you can communicate those wishes to your doctors.
Making your wishes known in advance — and putting the right legal document in place to ensure that your wishes are implemented if those circumstances occur — provides guidance to your loved ones, your agent under a power of attorney, or a court-appointed guardian, who may face making difficult decisions on your behalf if you become terminally ill and incapacitated.
Thinking about making end-of-life decisions can be difficult and uncomfortable. When you talk with an experienced estate planning attorney about those decisions in the context of your overall estate plan, your lawyer should help you navigate through the decision-making process in a thoughtful and careful manner, to ensure you make the decisions that are right for you and your loved ones.
In addition to a living will, your estate plan should include a durable power of attorney for health care decisions, which authorizes a trusted person to be your agent in making medical decisions for you if you become incapacitated for any reason. A durable power of attorney is broader than a living will, because it covers medical circumstances other than a terminal illness.
In addition to a living will and durable power of attorney for health care decisions, your estate plan should also include a durable power of attorney for financial decisions. In this document, you designate an agent to act on your behalf regarding financial matters if you become incapacitated.
Making certain that you have all the necessary documents to protect yourself and your loved ones in the event of incapacity is an important reason that you should consult an experienced estate planning attorney before you put any legal documents in place. Attempting to make an estate plan without the advice of a knowledgeable lawyer creates substantial risks for you and your family.
Our experienced estate planning attorneys at Sloan Law Firm are here to help you create a living will, along with the other essential documents that protect you and your family. We handle the full range of matters relating to estate planning, including preparation of living wills, wills, trusts, powers of attorney, and other important estate plan documents. We assist clients throughout Kansas and invite you to contact us by calling (785) 357-6311 or using our online contact form.