Living Will Directive & Healthcare Surrogate
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Kentucky Living Will Directive and Healthcare Surrogate
Someone will make medical decisions for you if you cannot make them yourself. The only question is whether it is the person you chose, guided by wishes you wrote down, or whoever Kentucky law happens to put at the front of a statutory list.
A Kentucky living will directive does both jobs in one document. It appoints a healthcare surrogate to speak for you, and it records your wishes about life-prolonging treatment and artificial feeding so your surrogate is carrying out your decision rather than guessing at it.
This is the document families thank us for most. Not because of what it saves in money, but because of what it spares them: the moment in a hospital corridor when adult children have to decide something enormous with no idea what their parent would have wanted.
Advance directives are included in every estate plan we prepare and can be done on their own. Call (502) 348-2108 for a free consultation.
What Is a Kentucky Living Will Directive?
A Kentucky living will directive is a written advance directive authorized by the Kentucky Living Will Directive Act, KRS 311.621 to 311.643. In a single statutory form it lets you appoint a healthcare surrogate to make medical decisions when you cannot, and state your wishes about withholding or withdrawing life-prolonging treatment and artificially provided nutrition and hydration.
Kentucky combines in one document what many states split into two. There is no separate healthcare power of attorney form here; the surrogate designation lives inside the living will directive itself.
It operates only when you cannot speak for yourself. As long as you have capacity, you make your own decisions and the directive sits unused. It is not a do-not-resuscitate order and it does not authorize anyone to override you.
What Kentucky Requires for a Valid Directive
The execution requirements in KRS 311.625 are specific, and the restrictions on who may witness catch families out more than any other part.
Signing and witnessing
The directive must be in writing, signed and dated by you, and either notarized or signed by two adult witnesses in your presence. Where you are physically unable to sign, another adult may sign at your direction and in your presence.
Who may not serve as a witness
A witness may not be a blood relative, your spouse, your attending physician, an employee of the treating healthcare facility, anyone who would inherit from your estate, or anyone financially responsible for your care. That list eliminates almost everyone who is likely to be in the room, which is exactly why directives signed hastily at a hospital admission so often have witness problems. We execute them in the office with qualified witnesses and a notary.
Kentucky honors an advance directive validly executed in another state to the extent it is consistent with Kentucky law. If you have moved here, though, reissuing in the Kentucky statutory form removes any hesitation on the part of a Kentucky hospital that has never seen your home state document.
What the Directive Lets You Decide
Who speaks for you
Your healthcare surrogate, plus at least one successor. This is the most important choice in the document, and it need not be the same person who handles your finances.
Life-prolonging treatment
Whether you want treatment withheld or withdrawn if you have a terminal condition or are permanently unconscious, or whether you want everything available done.
Artificial nutrition and hydration
Kentucky treats tube feeding as a separate election, so you may direct it differently from other life-prolonging treatment. This is the choice families find hardest when it has not been written down.
Comfort care
Directives make clear that measures to keep you comfortable and free of pain continue regardless of your other choices. No one is ever choosing between treatment and comfort.
Organ and tissue donation
The Kentucky form includes an election regarding anatomical gifts, so your wishes are recorded alongside everything else.
HIPAA authorization
A companion authorization letting the people you name receive medical information. Without it, a surrogate can be entitled to decide and still be refused the records needed to decide well.
Who Decides If You Have No Directive
Kentucky does not leave the question open, but the answer it supplies may not be the one you would choose. KRS 311.631 sets out an order of responsible parties for a patient who cannot decide and has no directive.
The order runs: a judicially appointed guardian with authority over healthcare decisions, then an attorney-in-fact with healthcare authority, then your spouse, then an adult child or, where there is more than one, a majority of adult children who are reasonably available, then your parents, then your nearest living relative.
Two problems follow. The first is that the person at the top of the list may not be the person who knows your wishes, and an estranged spouse or a long-absent relative can outrank the child who has been caring for you daily.
The second is the majority rule among adult children. Where siblings disagree, and they frequently do, decisions stall at exactly the moment they cannot wait. A named surrogate ends that argument before it starts.
Related Kentucky Documents Worth Knowing
The living will directive is one piece. These are the others that come up, and how they differ.
01
Kentucky MOST form
Medical Orders for Scope of Treatment, adopted in Kentucky in 2015. Unlike a directive, which speaks to a future situation, MOST is a physician-signed medical order that is actionable immediately and is honored by emergency medical services. It suits people who are already seriously ill or frail, and should be reviewed annually with the treating physician.
02
Do-not-resuscitate order
A DNR is a medical order concerning resuscitation only. A living will directive is a broader legal document about your wishes generally. They are not interchangeable and one does not create the other.
03
Durable power of attorney
Covers money and property, not medical care. Every adult needs both, and they may name different people. See durable power of attorney.
04
Mental health advance directive
A separate Kentucky instrument addressing psychiatric treatment preferences, relevant where a condition may episodically affect capacity.
05
HIPAA authorization
Not a decision-making document, but the one that lets your family actually obtain information. It is worth signing even for healthy young adults, whose parents otherwise have no right to a word of it once they turn eighteen.
If a family member is already seriously ill, ask their physician about the MOST form as well as a directive. Call (502) 348-2108 if you want help thinking it through.
Making Sure the Document Is There When It Is Needed
A directive locked in a safe deposit box at two in the morning on a Sunday is the same as no directive at all. Where it lives matters as much as what it says.
We give clients copies for the people who may need them and encourage lodging one with the primary care physician and the local hospital. Kentucky also maintains a statewide advance directive registry through the Secretary of State, which some families find reassuring, though a directive is fully valid whether or not it is registered.
Tell your surrogate they have been named. It sounds obvious and it is skipped constantly. A surrogate learning of the role in an emergency room is being asked to make decisions with no preparation at all.
Review it after any significant change in health, and reconsider the named surrogate whenever your family circumstances change.
- Turning eighteen, when parents lose the automatic right to make decisions or receive information
- Before any surgery or significant medical procedure
- A diagnosis of a serious, progressive or terminal condition
- Marriage, divorce, or the death of a named surrogate
- Moving to Kentucky from another state
- Entering a nursing home, assisted living or hospice program
- Any change in your own views about life-prolonging treatment
Advance Directives Prepared in Bardstown and Louisville
Thomas Hamilton has practiced elder law in Kentucky since 2014 and is a member of the Kentucky Bar Association Elder Law Section and the National Academy of Elder Law Attorneys. Advance directives are part of every plan we prepare and can be handled as a standalone matter.
We execute documents at 117 E. Stephen Foster Avenue in Bardstown and at the First Trust Centre, 200 S. 5th Street in Louisville, with qualified witnesses and a notary available, and serve Nelson, Bullitt, Washington, Marion, Larue, Hardin, Anderson, Spencer and Jefferson counties.
The initial consultation is free. Schedule a consultation or read more about elder law planning.
Common Mistakes With Advance Directives
Signing with disqualified witnesses
KRS 311.625 excludes blood relatives, your spouse, your attending physician, facility employees, anyone who would inherit from you, and anyone financially responsible for your care. Hospital-admission signings frequently violate this without anyone noticing.
Never telling the surrogate
Being named is a responsibility, not a surprise to be sprung during a crisis. Have the conversation while it is an ordinary one.
Naming someone who cannot follow your wishes
The right surrogate is the person who will carry out what you decided even when it is painful, not necessarily the person who loves you most or the eldest child.
Leaving artificial feeding unaddressed
Kentucky treats it as a separate election for a reason. Where the form is left blank, the family is put back in the position the directive was meant to spare them.
Assuming a financial power of attorney covers medical care
It does not. They are separate documents under separate statutes, and having one does nothing about the other.
Filing it somewhere no one can reach
Copies to your surrogate, your physician and the hospital. A directive nobody can produce is not going to be followed.
FREQUENTLY ASKED QUESTIONS
Common Questions About Advance Directives
What is a living will?
In Kentucky, a living will directive is a written advance directive under KRS 311.621 to 311.643 in which you appoint a healthcare surrogate and state your wishes about life-prolonging treatment and artificially provided nutrition and hydration if you have a terminal condition or are permanently unconscious. It takes effect only when you cannot make or communicate decisions yourself.
What is a healthcare power of attorney?
It is the authority to make medical decisions for someone who cannot make them personally. Kentucky handles this through the healthcare surrogate designation contained within the living will directive rather than as a separate form, so one document does both jobs.
Who decides for me if I have no directive?
KRS 311.631 sets an order: a judicially appointed guardian with healthcare authority, then an attorney-in-fact with healthcare authority, then your spouse, then an adult child or a majority of reasonably available adult children, then your parents, then your nearest living relative. That person may not be the one who knows your wishes, and where siblings must reach a majority, decisions can stall.
Who can witness my Kentucky living will directive?
Two adults who are not blood relatives, not your spouse, not your attending physician, not employees of the treating facility, not people who would inherit from your estate, and not financially responsible for your care. A notary may be used instead of two witnesses. These restrictions are the most common reason a directive turns out to be defective.
Is my advance directive from another state valid in Kentucky?
Kentucky generally honors an advance directive validly executed elsewhere to the extent it is consistent with Kentucky law. Even so, reissuing in the Kentucky statutory form is worth doing after a move, because a Kentucky hospital confronted with an unfamiliar out-of-state document may hesitate at precisely the wrong moment.
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Spare Your Family the Guesswork
The families who struggle most are the ones left guessing. Put your wishes in writing with attorney Thomas Hamilton at a free consultation. Call (502) 348-2108 or use the form below.
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117 E. Stephen Foster Avenue, Bardstown, KY 40004