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Session of 2026
HOUSE BILL No. 2720
By Committee on Judiciary
Requested by Tara Mays on behalf of the Kansas Hospital Association
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AN ACT concerning health and healthcare; enacting the Kansas surrogate
medical decisions act to establish a hierarchy for identifying a surrogate
who would make healthcare decisions; providing associated definitions
and provider guidelines.
Be it enacted by the Legislature of the State of Kansas:
Section 1. (a) This section shall be known and may be cited as the
Kansas surrogate medical decisions act.
(b) As used in this act, unless the context requires otherwise:
(1) "Advance directive" means a healthcare decision through a
written statement, including, but not limited to, a living will or as
recognized under K.S.A. 65-28,101 et seq., and amendments thereto, or
other forms of written statements of a healthcare decision under the laws
of this state or another state.
(2) "Agent" means a person designated in a durable power of attorney
for healthcare decisions to make a healthcare decision for the person
granting power.
(3) "Attending physician" means a physician selected by or assigned
to a patient who has primary responsibility for any treatment and care of
such patient.
(4) "Capacity" means a person's ability to understand any significant
benefits, risks and alternatives to proposed healthcare and make and
communicate a healthcare decision.
(5) "Designated surrogate" means a person appointed to make a
healthcare decision for another pursuant to this act if such patient lacks
capacity.
(6) "Durable power of attorney for healthcare decisions" means the
same as defined in K.S.A. 58-625, and amendments thereto, and includes a
durable power of attorney for healthcare decisions that is valid under the
laws of this state or another state.
(7) "Ethics review process" means a consultation with an ethicist or
ethics committee composed of members that may include clinical and
nonclinical representatives of ethics, healthcare, law, pastoral care, social
work and other related disciplines.
(8) "Guardian" means the same as defined in K.S.A. 59-30,101 et
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seq., and amendments thereto.
(9) "Healthcare" means any care, treatment, service or procedure to
maintain, diagnose, treat or otherwise affect a person's physical or mental
condition.
(10) "Healthcare decision" means:
(A) Consent, refusal of consent or withdrawal of consent to
healthcare;
(B) making necessary arrangements at any medical care facility,
psychiatric hospital or treatment facility, hospice, nursing home or similar
institution;
(C) employing or discharging a healthcare professional to administer
healthcare necessary for the physical, mental and emotional well-being of
a patient; or
(D) requesting, receiving and reviewing any information, verbal or
written, regarding a patient's personal affairs or physical or mental health,
including medical and hospital records, and executing any releases of other
documents that may be required to maintain such information.
(11) "Healthcare provider" means the same as defined in K.S.A. 40-
3401(f), and amendments thereto.
(12) "Identified surrogate" means a person identified by a supervising
healthcare provider to make a healthcare decision for a patient pursuant to
this act if such patient lacks capacity and a guardian, agent or designated
surrogate has not been appointed.
(13) "Medical care facility" means the same as defined in K.S.A. 65-
425, and amendments thereto.
(14) "Person" means an individual, firm, partnership, corporation,
company, association or joint-stock association, or the legal successor
thereof.
(15) "Personally informing" means a communication by any effective
means from a patient directly to a healthcare provider.
(16) "Physician" means a person licensed to practice medicine and
surgery by the state board of healing arts.
(17) "Reasonably available" means readily able to be contacted,
including by telephone, without undue effort and willing and able to act in
a timely manner considering the urgency of a patient's healthcare needs.
(18) "Supervising healthcare provider" means an attending physician
or, if there is no attending physician or an attending physician is not
reasonably available, a healthcare provider who has undertaken
responsibility for a patient's healthcare.
(19) "Surrogate" means a person authorized to make a healthcare
decision for a patient pursuant to this act. Surrogate includes a designated
surrogate and an identified surrogate.
(c) Decision making authority for a healthcare decision on behalf of
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another is set forth in order of preference as follows:
(1) (A) Guardian. A guardian appointed pursuant to the following
statutes shall have the authority to make a healthcare decision for a patient
in priority over any other decision-maker listed in paragraphs (2) through
(4):
(i) K.S.A. 59-30,150, and amendments thereto;
(ii) K.S.A. 59-30,133, and amendments thereto, in the case of a
minor; or
(iii) K.S.A. 59-30,154, and amendments thereto, with authority to
make personal medical decisions in accordance with K.S.A. 59-30,150,
and amendments thereto.
(B) Nothing in this act shall preclude any person, medical care
facility, healthcare provider or designee from pursuing appointment of a
guardian for a patient by a court of competent jurisdiction pursuant to
Kansas law.
(2) Agent. If a guardian as described in paragraph (1) has not been
appointed, a patient's agent who is authorized to act pursuant to K.S.A. 58-
625, and amendments thereto, or applicable law from another jurisdiction
with authority to act regarding such patient's healthcare decisions, subject
to any limitations, or a patient's healthcare proxy or alternate healthcare
proxy who is authorized to act pursuant to applicable law in another state,
except that the most recent valid authorization under this subsection shall
prevail, shall have the authority to make a healthcare decision for such
patient in priority over any other decision-maker listed in paragraph (3)
and (4).
(3) (A) Designated surrogate. If an adult or minor patient authorized
to make a healthcare decision under Kansas law does not have a guardian
as described in paragraph (1) or an agent as described in paragraph (2),
such patient may designate any person to act as a surrogate on such
patient's behalf by personally informing such patient's healthcare provider.
A designated surrogate shall have the authority to make a healthcare
decision for such patient in priority over any other decision-maker listed in
paragraph (4)(A).
(B) An appointment of a designated surrogate and any amendment to
an existing appointment shall be:
(i) In writing;
(ii) signed by the appointor or designee in the appointor's presence;
and
(iii) witnessed by an adult other than the surrogate.
(4) (A) Identified surrogate. In the case of a patient who is
persistently unconscious, incompetent or otherwise mentally or physically
incapable of communicating or designating a surrogate as described in
paragraph (3), lacks capacity or is incapable of consenting and does not
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have a guardian as described in paragraph (1) or an agent as described in
paragraph (2), a supervising healthcare provider or designee, in accordance
with medical care facility policy, shall identify such patient's surrogate
based on the following order of priority, excluding any person disqualified
from exercising such authority under paragraph (8):
(i) For an adult patient:
(a) Such patient's legal spouse, unless there is a pending divorce
proceeding or such patient and spouse are separated and estranged or in
the process of a divorce;
(b) such patient's adult child;
(c) such patient's parent;
(d) such patient's adult sibling;
(e) such patient's other adult relative in order of kinship; and
(f) such patient's close friend who has maintained regular contact
with such patient or has sufficient knowledge of such patient as to be
familiar with such patient's personal values. Such close friend shall
execute an affidavit stating specific facts and circumstances documenting
such contact or knowledge, and such affidavit shall constitute prima facie
evidence of such contact or knowledge.
(ii) For a minor patient:
(a) Such minor's parent, foster parent or an individual with written
parental consent in loco parentis;
(b) such minor's adult sibling; and
(c) such minor's grandparent.
(B) When there is a dispute among identified surrogates specified in
subparagraph (A)(i) or (ii) who otherwise take priority within the order, a
majority of the identified surrogates may make a healthcare decision for
such patient. In the event that such decision results in a tie, a
recommendation shall be brought through a medical care facility's ethics
review process to assist in the final decision-making. A medical care
facility's ethics review process may also be consulted to identify
reasonable concerns with an identified surrogate or in situations in which a
supervising healthcare provider declines to identify a surrogate as
addressed in subparagraph (C).
(C) When a medical care facility's ethics review process is consulted
under subparagraph (B), such medical care facility's ethics review process
shall consider the following criteria in determining the person best
qualified to serve as an identified surrogate:
(i) Whether an identified surrogate reasonably appears to be better
able to make a decision, either in accordance with a patient's known
wishes or best interests;
(ii) an identified surrogate's regular contact with a patient prior to and
during such patient's incapacitating illness;
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(iii) an identified surrogate's demonstrated care and concern;
(iv) an identified surrogate's availability to visit a patient during such
patient's illness; and
(v) an identified surrogate's availability to engage in face-to-face
contact with any healthcare providers for the purpose of fully participating
in the decision-making process.
(5) A supervising healthcare provider shall document a designated
surrogate or identified surrogate in a patient's current clinical record of any
medical care facility where such patient is receiving healthcare.
(6) If no person eligible to act under paragraphs (1) through (4) is
reasonably available, an attending physician may make a healthcare
decision for a patient, consistent with such patient's advance directive,
after such attending physician either:
(A) Consults with and obtains a recommendation through a medical
care facility's ethics review process; or
(B) obtains concurrence from a second physician who is not directly
involved in such patient's healthcare, does not serve in a capacity of
decision-making, influence or responsibility over such attending physician
and is not under such attending physician's decision-making, influence or
responsibility.
(7) In the event of a challenge, there shall be a rebuttable presumption
that a supervising healthcare provider's identification of a surrogate was
valid. Any person who challenges such identification shall have the burden
of proving the invalidity of such identification.
(8) No person who is the subject of a protective order or other court
order that directs such person to avoid contact with a patient or whom a
patient has requested not to be involved in decision-making when such
patient had capacity shall be eligible to serve as such patient's surrogate.
(9) Regardless of whether a court has appointed a guardian for a
patient, a patient has appointed an agent pursuant to a durable power of
attorney for healthcare decisions, a patient has designated a surrogate or a
surrogate has been identified for a patient pursuant to this act, a patient's
valid and duly executed advance directive shall control any healthcare
decision for such patient to which such advance directive applies, and an
individual acting as a patient's guardian, agent, designated surrogate or
identified surrogate shall make healthcare decisions for or on behalf of
such patient that are consistent with such patient's advance directive.
(10) A surrogate authorized to consent on behalf of a patient under
this act has the same authority as such patient, and such surrogate shall act
in good faith and in the best interest of a patient incapable of consenting.
(11) A healthcare decision made by a surrogate for a patient is
effective without judicial approval.
(12) A surrogate shall make a healthcare decision in accordance with
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any wishes of a patient or other wishes to the extent known to such
surrogate. Otherwise, a surrogate shall make a healthcare decision in
accordance with such surrogate's determination of a patient's best interest
based on such patient's personal values to the extent known to such
surrogate.
(13) Unless otherwise specified under the laws of this state or a
patient's advance directive, a surrogate may make all healthcare decisions
for a patient that such patient could make on such patient's own behalf,
except that life-saving or life-sustaining medical care, treatment, services
or treatment, including artificial nutrition and hydration, may be withheld
or withdrawn in behalf of such patient only on certification and
documentation in such patient's current clinical records by:
(A) Such patient's attending physician or supervising healthcare
provider; or
(B) a second independent physician or medical care facility's ethics
review process indicating that such patient is suffering from a severe
illness and that life-sustaining medical care, including artificial nutrition
and hydration, is objectively medically non-indicated and would only
prolong the dying process.
(14) A supervising healthcare provider, in such provider's discretion
or at the request of a person claiming authority as a patient's surrogate,
may also seek the assistance of any other healthcare provider or an ethics
review process of a medical care facility or another medical care entity to
effectuate the provisions of this act and promote the best interests of a
patient.
(15) In the event that an identified surrogate is appointed for a patient
at a medical care facility in accordance with this act, any other medical
care facility, psychiatric hospital or treatment facility, hospice, nursing
home or similar institution shall honor such designation for the purposes of
a transfer of such patient.
(d) A healthcare provider shall comply with the following:
(1) A supervising healthcare provider who makes or is informed of a
determination that a patient lacks or has recovered capacity or that another
condition exists that affects a healthcare decision or the authority of an
agent, guardian or surrogate shall promptly record such determination in
such patient's current clinical record and communicate such determination
to such patient, if possible, and to any person then authorized to make a
healthcare decision for such patient.
(2) Except as provided in paragraphs (3) through (5), a healthcare
provider or medical care facility providing care to a patient shall comply
with:
(A) Such patient's wishes and with a reasonable interpretation of an
instruction made by a person then authorized to make a healthcare decision
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for such patient; and
(B) a healthcare decision for a patient made by a person then
authorized to make a healthcare decision for such patient to the same
extent as if such healthcare decision had been made by such patient while
having capacity.
(3) A healthcare provider or medical care facility may decline to
comply with a healthcare decision if such healthcare decision:
(A) Is contrary to a policy of a medical facility that is based on
reasons of conscience; and
(B) such policy was timely communicated to a patient or person then
authorized to make a healthcare decision for such patient.
(4) A healthcare provider or medical care facility may decline to
comply with a healthcare decision that requires healthcare contrary to
generally accepted healthcare standards applicable to such healthcare
provider or medical care facility.
(5) A healthcare provider or medical care facility that declines to
comply with a healthcare decision pursuant to paragraphs (3) or (4) shall:
(A) Promptly so inform such patient, if possible, and any person then
authorized to make healthcare decisions for such patient;
(B) provide continuing care to such patient until a transfer can be
effected or until a determination has been made that a transfer cannot be
effected; and
(C) immediately make all reasonable efforts to assist in the transfer of
such patient to another healthcare provider or medical care facility that is
willing to comply with such healthcare decision, unless such patient or
person then authorized to make a healthcare decision for such patient
refuses assistance.
(6) If a transfer cannot be effected pursuant to paragraph (5), a
healthcare provider or medical care facility shall not be compelled to
comply with a healthcare decision pursuant to paragraph (3) or (4). If a
surrogate is unable or unwilling to arrange a transfer to another medical
care facility, a medical care facility refusing to honor a healthcare decision
may intervene to facilitate such transfer.
(7) Nothing in this act obligates a medical care facility to honor a
healthcare decision by a surrogate that such medical care facility would
not otherwise honor if such decision had been made by a patient because
such decision is contrary to a formally adopted policy of such medical care
facility that is expressly based on religious belief or sincerely held ethical
or moral conviction central to the operating principles of such medical care
facility. If reasonably possible, such medical care facility may refuse to
honor such decision, whether made by a patient or a surrogate, if such
medical care facility has informed such patient or surrogate of such policy.
(8) Nothing in this act obligates a healthcare provider to honor or
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cooperate with a healthcare decision by a surrogate that such healthcare
provider would not otherwise honor or cooperate with if such decision had
been made by a patient because such decision is contrary to such
healthcare provider's religious belief or sincerely held moral or ethical
conviction. Such healthcare provider shall promptly inform the surrogate
and the patient's medical care facility of such refusal to honor or cooperate
with such decision of such surrogate. In such an event, such medical care
facility shall promptly assist in the transfer of such patient to a healthcare
provider selected by such patient or surrogate or, if such patient or
surrogate does not select a healthcare provider, to a healthcare provider at
such medical care facility or another medical care facility who has
affirmatively indicated that such healthcare provider will honor or
cooperate with such healthcare decision of such patient or surrogate.
(e) Notwithstanding any other provision of law to the contrary:
(1) A healthcare provider or medical care facility acting in accordance
with this act and with generally accepted healthcare standards applicable
to such healthcare provider or medical care facility is immune from civil
or criminal liability or discipline for unprofessional conduct for:
(A) Complying with or relying on a healthcare decision of a person
having apparent authority to make a healthcare decision for a patient,
including a decision to withhold or withdraw healthcare;
(B) declining to comply with a healthcare decision of a person based
on a belief that such person then lacked authority;
(C) complying with or relying on an advance directive and assuming
that such directive was valid when made and that it had not been revoked
or terminated; or
(D) declining to comply with a healthcare decision that requires
healthcare contrary to generally accepted medical standards applicable to
such healthcare provider or medical care facility;
(2) a person that is an authorized agent or surrogate under this act is
immune from civil or criminal liability or discipline for unprofessional
conduct for healthcare decisions made in accordance with generally
accepted healthcare standards applicable to or recommended by an
attending physician, supervising healthcare provider or medical care
facility; and
(3) a person, attending physician, supervising healthcare provider,
medical care facility or designee is immune from civil or criminal or
criminal liability or discipline for unprofessional conduct for naming or
identifying a surrogate under this act, a healthcare decision made for a
patient or making a determination of capacity under this act if such naming
or identifying, decision-making or determination is made in accordance
with this act.
Sec. 2. This act shall take effect and be in force from and after its
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publication in the statute book.1