Kansas Attorney General Opinion 2015-001

January 13, 2015
ATTORNEY GENERAL OPINION NO. 2015- 1
The Honorable John Rubin
State Representative, 18th District
13803 W. 53rd Street
Shawnee, Kansas 66216
Re: 	Public Health—Health Care Providers—Do Not Resuscitate Orders or
Directives; Definitions; Immunity from Liability
Probate 	Code—Guardians 	or 	Conservators—Guardian's 	Duties,
Responsibilities, Powers and Authorities
Synopsis: 	The 	“Kansas-Missouri 	Transportable 	Physician 	Orders 	for 	Patient
Preferences” (KM-TPOPP) form is not a “do not resuscitate” directive
pursuant to K.S.A. 65-4941 et seq.; therefore, the immunity from liability
provision in K.S.A. 65-4944 is not applicable or available to a health care
provider who relies on the KM-TPOPP form as a DNR directive. 	Whether
the KM-TPOPP form is a DNR order under the act and whether the
immunity provision in K.S.A. 65-4944 is applicable or available to a health
care provider who relies in good faith on the DNR order is a question of
fact that cannot be answered in this opinion. The KM-TPOPP form cannot
override the statutory limits imposed on guardians pursuant to the Act for
Obtaining 	a 	Guardian 	or 	a 	Conservator, 	or 	Both 	and 	cannot 	grant
guardians powers or authority that the Act denies them. 	Cited herein:
K.S.A. 58-625; 59-3050; K.S.A. 2014 Supp. 59-3051; 59-3075; K.S.A. 65-
28,101; K.S.A. 2014 Supp. 65-28,108; K.S.A. 65-4941; 65-4942; 65-4943;
65-4944; 65-4947.

Representative John Rubin
Page 2
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Dear Representative Rubin:
As State Representative of the 18th District, you request an Attorney General opinion on
two questions relating to the use by Kansas health care facilities of a form titled the
“Kansas-Missouri 	Transportable 	Physician 	Orders 	for 	Patient 	Preferences” 	(KM-
TPOPP). 1 You state that this particular form is created and promoted for use by the
Center for Practical Bioethics, a nonprofit corporation. 2
Do Not Resuscitate
First, you ask whether the KM-TPOPP form provides “a means valid under current
Kansas law for directing a ‘do not resuscitate’ (DNR) order, so that a health care
provider 	who 	causes 	or 	participates 	in 	the 	withholding 	or 	withdrawing 	of
cardiopulmonary resuscitation (CPR) pursuant to it in good faith is immune from civil or
criminal liability or liability for unprofessional conduct.”
K.S.A. 65-4941 et seq. provides for DNR orders and DNR directives. 	A “do not
resuscitate” directive or “DNR directive” is a written and witnessed document that is
voluntarily executed by the declarant in accordance with the requirements of the act to
limit the scope of emergency care. 3 	Specifically, the DNR directive provides that if the
declarant’s heart stops beating or if the declarant stops breathing, CPR to restart heart
functioning or breathing will not be instituted. 4 In Kansas, in order to be legally sufficient
a DNR directive must be:
(a) In writing; (b) signed by the person making the declaration, or by
another 	person 	in 	the 	declarant's 	presence 	and 	by 	the 	declarant's
expressed direction; (c) dated; and (d) signed in the presence of a witness
who is at least 18 years of age and who shall not be the person who
signed the declaration on behalf of and at the direction of the person
making the declaration, related to the declarant by blood or marriage,
entitled to any portion of the estate of the declarant according to the laws
1 We note that in 2014, a bill relating to the creation of a uniform and standardized transportable physician
orders for patient preferences form was introduced in the Legislature. 	The form that would have been
created by this bill is similar to but not identical to the KM-TPOPP form you provided us for this review.
The bill did not receive a hearing and it died in committee.
2 The Attorney General is not expressing an opinion regarding the business practices of the Center and is
not endorsing any of its forms or programs.
3 K.S.A. 65-4941(b) and 65-4942.
4 Pursuant to K.S.A. 65-4941(a), “Cardiopulmonary resuscitation” means chest compressions, assisted
ventilations, intubation, defibrillation, administration of cardiotonic medications or other medical procedure
which is intended to restart breathing or heart functioning.

Representative John Rubin
Page 3
of intestate succession of this state or under any will of the declarant or
codicil thereto, or directly financially responsible for declarant's medical
care. 5
A “do not resuscitate order” or “DNR order” means instruction regarding the withholding
or withdrawing of CPR by the physician who is responsible for the care of the patient
while admitted to a licensed medical care facility or a licensed adult care home.6 A DNR
order issued pursuant to the act shall remain valid during transport of the patient
between such licensed medical care facility and a licensed adult care home, and vice
versa, unless rescinded by the physician who is responsible for the care of the patient. 7
The immunity provision found in K.S.A. 65-4944 provides:
No health care provider who in good faith causes or participates in the
withholding or withdrawing of cardiopulmonary resuscitation pursuant to a
“do not resuscitate” order or directive or the presence of a DNR identifier 8
shall be subject to any civil liability nor shall such health care provider be
guilty of a crime or an act of unprofessional conduct.9
Because your first question is limited to the withholding or withdrawing of CPR, we only
address Section A of the KM-TPOPP form you provided with your request.10 It states to
check one box, as follows:
Cardiopulmonary Resuscitation (CPR): Person has no pulse and is not
breathing.
 	Attempt Resuscitation (CPR)
 	Do Not Attempt Resuscitation (DNR/no CPR/Allow Natural Death)
When not in cardiopulmonary arrest, follow orders in B, C, and D (below).
Section A of the KM-TPOPP form is not a DNR directive pursuant to K.S.A. 65-4941(b).
It fails to follow the statutory form in K.S.A. 65-4942, which requires the signature of the
5 K.S.A. 65-4943.
6 K.S.A. 65-4941(c).
7 K.S.A. 65-4947.
8 A DNR identifier is a “medallion or bracelet designed to be worn by a patient which has been inscribed
to identify the patient and contains the letters “DNR” or the statement “do not resuscitate” when such
DNR identifier is distributed by an entity certified by the emergency medical services board.” K.S.A. 65-
4941(e).
9 Whether reliance by a health care provider on a physician’s DNR order was in good faith is a question of
fact that cannot be answered in an advisory opinion. Additionally, we do not opine on the validity of this
statute.
10 The other sections, which relate to medical interventions when the patient has a pulse and/or is
breathing, antibiotics, or medically administered fluids and nutrition, are far beyond the scope of
withholding CPR and would offer no limitation on liability even if the KM-TPOPP DNR order functions to
immunize a health care provider who withholds CPR.

Representative John Rubin
Page 4
declarant and the signature of an uninterested adult witness; and the KM-TPOPP does
not provide for a revocation of the declaration. 	Therefore, the immunity from liability
provision in K.S.A. 65-4944 is not applicable or available to a health care provider who
relies on the KM-TPOPP form as a DNR directive.
Section A of the KM-TPOPP form may be a DNR order pursuant to K.S.A. 65-4941(c),
but the specific conclusion depends on the facts of a particular case. Unlike a DNR
directive, a DNR order is not required by Kansas law to be in a particular form. 11 Under
the act, a DNR order is issued by the responsible physician while a patient is admitted
to a medical care facility or adult care home and is only effective during that admission
or during transport to an adult care home or medical care facility. 	Thus, if the KM-
TPOPP form is signed before a patient is admitted, it is not a DNR order pursuant to
K.S.A. 65-4941(c). 	In addition, if the patient is released from the medical care facility,
the KM-TPOPP form can no longer be a DNR order pursuant to K.S.A. 65-4941(c)
except during transport back to the adult care home.
A DNR order pursuant to K.S.A. 65-4941 et seq., however, is not the exclusive legal
method for defining health care decision-making rights and responsibilities; therefore, a
continued analysis of 	the facts would be required to determine the validity of a
physician’s order to forego CPR and whether immunity or defenses are available to the
health care provider.12
Guardianship
Your second question is whether the KM-TPOPP “form invalidly enable[s] a guardian to
direct the withholding or withdrawal of life-preserving measures without documenting
fulfillment of the statutorily required prerequisites for doing so.”
K.S.A. 59-3050 et seq. is known as the Act for Obtaining a Guardian or a Conservator,
or Both. 	Generally, the purpose of the Act is to provide for the protection and care of
impaired persons who lack the capacity to manage their estate or to meet their essential
needs 	for 	physical 	health, 	safety 	or 	welfare 	by 	appointing 	a 	guardian 13 	or 	a
conservator.14 	The Act authorizes a guardian to consent, on behalf of the ward, to the
withholding or withdrawal of life-saving or life sustaining medical care under three
11 See K.S.A. 65-4941(c).
12See K.S.A. 2014 Supp. 65-28,108(d) (“Nothing in this act shall impair or supersede any legal right or
legal responsibility which any person may have to effect the withholding or withdrawal of life-sustaining
procedures in any lawful manner. In such respect the provisions of this act are cumulative.”).
13 A guardian is a certified individual or a corporation certified who or which is appointed by a court to act
on behalf of a ward, and who or which is possessed of some or all of the powers and duties set out
in K.S.A. 59-3075. K.S.A. 2014 Supp. 59-3051(e).
14 A conservator is an individual or a corporation who or which is appointed by the court to act on behalf
of a conservatee and who or which is possessed of some or all of the powers and duties set out in K.S.A.
59-3078. K.S.A. 2014 Supp. 59-3051(d)

Representative John Rubin
Page 5
limited 	circumstances. 15 	Each 	of 	those 	three 	circumstances 	requires 	a 	properly
documented act in accordance with law. Otherwise, the guardian is without authority to
consent.
Clearly, the KM-TPOPP form cannot override the statutory limits imposed on guardians
pursuant to the Act for Obtaining a Guardian or a Conservator, or Both and cannot grant
guardians powers or authority that the Act denies them.16 	Therefore, we conclude the
KM-TPOPP form does not enable a guardian to direct the withholding or withdrawal of
life-preserving measures without fulfillment of one or more of the statutorily required
prerequisites, each of which requires legal documentation as a matter of law.
Sincerely,
Derek Schmidt
Attorney General
Athena E. Andaya
Deputy Attorney General
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15 See K.S.A. 2014 Supp. 59-3075(e)(7)(A), (B), and (C).
16 K.S.A. 2014 Supp. 59-3075.