Kentucky Healthcare Power of Attorney Requirements
Kentucky has no stand-alone "health care power of attorney" at all.
Introduction
Kentucky has no stand-alone "health care power of attorney" at all. Your health care surrogate designation instead lives inside one combined document, the Living Will Directive, created by the Kentucky Living Will Directive Act (Kentucky Revised Statutes 311.621 to 311.643), which also carries your own wishes about life-prolonging treatment, artificial nutrition and hydration, and organ donation. Signing this single form is what lets you name a trusted adult, called your health care surrogate, to make health care decisions for you if you ever lose the ability to decide for yourself. Signing this document does not hand your surrogate immediate authority. Your surrogate can only step in once your attending physician determines, in good faith, that you no longer have decisional capacity to make your own health care decisions. Whenever your physician determines you still have that capacity, the choice stays yours alone. Kentucky gives you two ways to make the document legally valid: sign it in front of two adult witnesses, or sign it before a notary public. There is no state registry to file it with, so you keep the original and give copies to your physician, your surrogate, and any health care facility treating you.
Key Things to Know
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Kentucky has no separate health care power of attorney form. Instead, one clause of the single Living Will Directive lets you (the grantor) name a trusted adult (your health care surrogate) to make health care decisions for you if you lose decisional capacity, while the rest of that same document states your own treatment wishes.
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Your surrogate's authority does not start the moment you sign. Kentucky law lets your surrogate act only when your attending physician has determined, in good faith, that you no longer have decisional capacity (KRS 311.629(2)).
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Unless you say otherwise, your surrogate must make decisions according to the wishes you wrote in the directive and must consider your attending physician's recommendation (KRS 311.629(1)).
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An employee, owner, director, or officer of a health care facility where you are a resident or patient cannot be your surrogate, unless that person is your close relative or shares your religious or fraternal order (KRS 311.625(4)).
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You can sign in front of two adult witnesses or sign before a notary instead. You do not need both. A facility employee is barred from acting as an ordinary witness, but that same employee may still serve if acting as your notary (KRS 311.625(2)).
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You can revoke your directive at any time with a signed writing or by destroying the document. If you still have decisional capacity, an oral statement in front of two adults, one of whom is a health care provider, also works and overrides any earlier written directive (KRS 311.627).
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Kentucky has no central state registry for Living Will Directives. Keep the signed original and give copies to your physician, your surrogate, and any health care facility treating you.
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This directive has no force or effect while you are diagnosed as pregnant and your attending physician knows of the diagnosis (KRS 311.625, 311.629(4)).
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This is a different document from Kentucky's Power of Attorney (Kentucky Uniform Power of Attorney Act, KRS Chapter 457), which covers property and financial decisions, not health care, and which is durable and effective immediately by default.
Key decisions before you file
Before you file a Healthcare Power of Attorney in Kentucky, a few decisions shape the document: which option to choose and what each one means. The Healthcare Power of Attorney guide walks through them.
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Kentucky Requirements for Healthcare Power of Attorney
The document designates a health care surrogate, not an "attorney-in-fact" (that term belongs to Kentucky's separate financial power of attorney statute, KRS Chapter 457), using the statutory Living Will Directive form (KRS 311.625(1)). The surrogate is defined at KRS 311.621(16) as an adult designated to make health care decisions in accordance with the Act. The designation is not a stand-alone document; it is one clause inside the same form that also carries the grantor's treatment directives.
The statutory form lets the grantor name a "successor surrogate" who serves if the primary surrogate refuses or is unable to act, using the form language at KRS 311.625(1) ("If [name] refuses or is not able to act for me, I designate [name] as my health care surrogate(s)").
The surrogate may make any health care decision the grantor could make individually if the grantor had decisional capacity, provided the decision is made according to the grantor's wishes as indicated in the directive. When deciding, the surrogate must consider the attending physician's recommendation and honor the grantor's stated wishes (KRS 311.629(1)).
Federal HIPAA regulations govern how your surrogate can be authorized to access your protected health information once the directive is in effect.
Unlike Kentucky's separate financial power of attorney (KRS Chapter 457), which is durable by default and can take effect immediately, Kentucky's Living Will Directive has no immediate-effect option for surrogate authority. The surrogate simply may not make a health care decision at any time the grantor's attending physician has determined, in good faith, that the grantor has decisional capacity; conversely, the surrogate may act whenever the physician has not made that determination (KRS 311.629(2)). Kentucky's statute, unlike some states, does not require a separate written incapacity certification filed in the medical record before the surrogate may act.
Kentucky defines "decisional capacity" as the ability to make and communicate a health care decision (KRS 311.621(5)). The determination that a grantor lacks decisional capacity is made by the grantor's attending physician acting in good faith (KRS 311.629(2)); Kentucky's Living Will Directive Act does not require a second physician to concur for this general determination. While the general determination of incapacity is made by the attending physician alone, state law requires two physicians to certify certain other conditions, such as the pregnancy exception (311.629(4)) and the separate "terminal condition" and "permanently unconscious" definitions (311.621(13), (17)).
The grantor may revoke the directive by a signed and dated writing, or by destroying the document (personally or through someone else acting in the grantor's presence and at the grantor's direction), even if the grantor no longer has decisional capacity. A revocation may also be made orally, but only if the grantor has decisional capacity and the oral statement is made in the presence of two adults, one of whom is a health care provider; an oral revocation overrides any earlier written directive (KRS 311.627(1), (2)). The surrogate designation specifically may be revoked in whole or in part, or the surrogate's powers reduced, at any time the grantor has decisional capacity (KRS 311.627(4)).
The grantor signs before two or more adult witnesses in the presence of each other, or alternatively signs with the signature acknowledged before a notary public (no witnesses needed if notarized) (KRS 311.625(2)). None of the following may serve as either witness or as the notary: a blood relative of the grantor; a beneficiary of the grantor's estate under the Commonwealth's descent-and-distribution statutes; the grantor's attending physician; or anyone directly financially responsible for the grantor's health care. An employee of a health care facility where the grantor is a patient is additionally barred from serving as a witness, but may serve as the notary.
The grantor may sign and have the signature acknowledged before a notary public or other person authorized to administer oaths, in place of, not in addition to, the two-witness method (KRS 311.625(2)).
In Kentucky, the designation of a health care surrogate is a required part of the single Living Will Directive form, alongside directives for medical treatment. Kentucky law structures the surrogate designation and the life-prolonging-treatment, artificial-nutrition, and organ-donation directives as clauses of the same single statutory form (KRS 311.625(1)); KRS 311.623(1) lists all four options, designating a surrogate, directing withholding or withdrawal of life-prolonging treatment, directing withholding or withdrawal of artificial nutrition and hydration, and directing an anatomical gift, as things one document may do. There is no separate Kentucky "health care power of attorney" form apart from this combined instrument.
The grantor may authorize or decline anatomical gift of the body upon death directly within the same Living Will Directive form, for any purpose specified in KRS 311.1929 (KRS 311.623(1)(d), 311.625(1)). If the grantor did not address organ donation in the directive, Kentucky's anatomical gift law gives the grantor's health care surrogate top priority, ahead of the spouse, adult children, or other relatives, to make that decision after death (KRS 311.1925(1)(a)).
Kentucky's Living Will Directive and its health care surrogate are governed entirely by KRS 311.621 to 311.643 and do not themselves address psychiatric or mental health treatment. Kentucky instead created a wholly separate statutory instrument, the Advance Directive for Mental Health Treatment (KRS 202A.420 to 202A.432), with its own surrogate, its own witness-or-notary execution rule, and its own statutory form (KRS 202A.430), letting a grantor refuse specific psychotropic medications or electroconvulsive therapy and state treatment preferences.
The statutory Living Will Directive form itself states that the directive has no force or effect during the course of the grantor's pregnancy if that diagnosis is known to the attending physician (KRS 311.625(1)). Separately, KRS 311.629(4) requires that life-sustaining treatment and artificially provided nutrition and hydration continue to be provided to a pregnant grantor unless, to a reasonable degree of medical certainty, two physicians certify specific conditions on the patient's medical chart.
The surrogate must make health care decisions in accordance with the grantor's wishes as indicated in the directive, and must consider the attending physician's recommendation (KRS 311.629(1)).
A health care facility, physician, or person acting under a physician's direction is not subject to criminal prosecution, civil liability, or a finding of unprofessional conduct for withholding or withdrawing life-prolonging treatment or artificial nutrition and hydration in accordance with an advance directive. No independent investigation of a surrogate's authority is required absent actual knowledge of disqualifying information, and an advance directive made in accordance with KRS 311.621 to 311.629 is presumed voluntary and validly executed absent actual contrary knowledge (KRS 311.635).
Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a Living Will Directive.
The statutory form provision allows a grantor to include other specific directions consistent with accepted medical practice, and states that if a court holds any such additional direction invalid, that invalidity does not affect the rest of the directive (KRS 311.625(1)).
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Check my Healthcare Power of AttorneyFrequently Asked Questions
A Living Will Directive in Kentucky is the legal document, created under Kentucky Revised Statutes 311.621 to 311.643, that lets you name a trusted adult (your health care surrogate) to make health care decisions for you if you ever lose decisional capacity. Unlike many states, Kentucky puts the surrogate designation and your own treatment wishes, such as life-prolonging treatment and organ donation, in the same single document rather than two separate forms.
A Living Will Directive covers only health care decisions. Kentucky's Power of Attorney (the Kentucky Uniform Power of Attorney Act, KRS Chapter 457) covers property and financial matters instead, such as banking or real estate, and its own statutory form states plainly that it does not authorize health care decisions. The two documents also activate differently. The Power of Attorney is durable by default and becomes effective immediately unless you state otherwise, while the Living Will Directive's surrogate can never act immediately; that authority always depends on your attending physician determining, in good faith, that you currently lack decisional capacity.
Yes. Kentucky requires two or more adult witnesses, and unlike some states, the same disqualification list applies to every witness, not just one of them. None of your witnesses may be a blood relative of yours, a beneficiary of your estate, your attending physician, anyone directly financially responsible for your health care, or a health care facility employee providing you care, unless that person is instead acting as your notary (Kentucky Revised Statutes 311.625(2)).
Generally, no. Kentucky bars an employee of a health care facility where you are a patient from serving as an ordinary witness to your Living Will Directive. The one exception is that this same employee may still complete your document if they are acting in their separate capacity as a notary public, rather than as one of your two witnesses (Kentucky Revised Statutes 311.625(2)).
Generally, no. An employee, owner, director, or officer of a health care facility where you are a resident or patient cannot be designated or act as your health care surrogate in Kentucky, unless that person is related to you within the fourth degree of consanguinity or affinity, or belongs to the same religious or fraternal order as you (Kentucky Revised Statutes 311.625(4)).
No. Kentucky does not operate a central registry for Living Will Directives or health care surrogate designations. You are responsible for keeping the signed original and giving copies to your physician, your surrogate, and any hospital or nursing home that treats you, since you will be asked at each admission whether you have one.
You can revoke it with a signed and dated writing, or by destroying the document yourself or having someone destroy it in your presence and at your direction. If you still have decisional capacity, you can also revoke it orally in the presence of two adults, one of whom must be a health care provider, and that oral revocation overrides any earlier written directive (Kentucky Revised Statutes 311.627).
Your directive has no force or effect during any period in which you are diagnosed as pregnant, if your attending physician knows of the diagnosis. Kentucky law separately requires that life-sustaining treatment and artificially provided nutrition and hydration continue to be given to a pregnant patient unless specific medical conditions, certified by two physicians, are met (Kentucky Revised Statutes 311.625, 311.629(4)).