Kentucky Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   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.

2. 2

   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)).

3. 3

   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)).

4. 4

   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)).

5. 5

   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)).

6. 6

   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).

7. 7

   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.

8. 8

   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)).

9. 9

   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.

Kentucky Requirements for Healthcare Power of Attorney

• Designation of Health Care Surrogate (Kentucky Revised Statutes 311.621, 311.625)

  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.

• Alternate Health Care Surrogate (Kentucky Revised Statutes 311.625)

  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)").

• Powers Granted to Health Care Surrogate (Kentucky Revised Statutes 311.629(1))

  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)).

• HIPAA Authorization (45 CFR 164.508)

  Federal HIPAA regulations govern how your surrogate can be authorized to access your protected health information once the directive is in effect.

• Activation of Surrogate Authority (Kentucky Revised Statutes 311.629(1), (2))

  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.

• Definition of Decisional Capacity (Kentucky Revised Statutes 311.621(5))

  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)).

• Revocation Provisions (Kentucky Revised Statutes 311.627)

  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)).

• Witness Requirements (Kentucky Revised Statutes 311.625(2))

  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.

• Notarization as an Execution Alternative (Kentucky Revised Statutes 311.625(2))

  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)).

• Combined Living Will and Surrogate Designation (Kentucky Revised Statutes 311.623, 311.625(1))

  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.

• Organ Donation Authorization (Kentucky Revised Statutes 311.625(1), 311.1925(1)(a))

  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)).

• Mental Health Treatment Decisions (Kentucky Revised Statutes 202A.420 to 202A.432)

  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.

• Pregnancy Provisions (Kentucky Revised Statutes 311.625, 311.629(4))

  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.

• Surrogate's Obligations and Standards (Kentucky Revised Statutes 311.629(1))

  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)).

• Relief from Liability (Kentucky Revised Statutes 311.635)

  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).

• Compliance with Patient Self-Determination Act (42 U.S.C. Section 1395cc(f))

  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.

• Severability of Additional Directions (Kentucky Revised Statutes 311.625(1))

  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)).