Kentucky Living Will Requirements

Kentucky's Living Will Directive is governed by KRS 311.621-311.643, the Kentucky Living Will Directive Act. This single statute lets an adult with decisional capacity state treatment wishes, designate a health care surrogate, or both, in one document with one execution block.

A living will directive made under KRS 311.623 must be substantially in the statutory form set out at KRS 311.625. Exact wording is not mandatory, and additional specific directions consistent with accepted medical practice may be added, but the document must track the form's essential elements to qualify as a directive under this Act.

To be valid, a living will directive must be in writing, dated, and signed by the grantor, or at the grantor's direction, and EITHER witnessed by two adults in the grantor's presence and in each other's presence, OR acknowledged before a notary public or other officer authorized to administer oaths. Neither path is a fallback for the other. None of the following may serve as a witness or as the notary: a blood relative of the grantor, a beneficiary of the grantor under Kentucky's descent and distribution statutes, an employee of a health care facility where the grantor is a patient (unless serving as notary), the grantor's attending physician, or any person directly financially responsible for the grantor's health care.

Kentucky allows a living will directive to designate one or more adults as health care surrogate or successor surrogate, in the same document and same execution block as the treatment-wishes portion. If two or more surrogates serve at the same time, all decisions must be by unanimous consent unless the directive provides otherwise. For full surrogate-designation guidance, see Kentucky Healthcare Power of Attorney.

A Kentucky living will directive may be revoked by a signed, dated writing declaring intent to revoke; by an oral statement of intent to revoke made by a grantor with decisional capacity in the presence of two adults, one of whom must be a health care provider; or by destruction of the document by the grantor or by another person in the grantor's presence and at the grantor's direction. An oral revocation overrides any earlier written directive. A surrogate designation specifically may also be revoked in whole or in part, or the surrogate's powers reduced, at any time by a grantor with decisional capacity, using these same methods, not a stricter separate rule.

Kentucky defines a 'terminal condition' as a condition caused by injury, disease, or illness which, to a reasonable degree of medical probability, as determined solely by the grantor's attending physician and one other physician, is incurable and irreversible and will result in death within a relatively short time, where life-prolonging treatment would serve only to artificially prolong the dying process. Two physicians, not one, must make this determination.

Kentucky defines 'permanently unconscious' as a condition which, to a reasonable degree of medical probability, as determined solely by the grantor's attending physician and one other physician on clinical examination, is characterized by an absence of cerebral cortical functions indicative of consciousness or behavioral interaction with the environment. As with terminal condition, two physicians must make this determination, not one.

Addressing artificial nutrition and hydration on the statutory form is optional, not mandatory, like every other election under KRS 311.623. But if a grantor does address it, Kentucky's form requires it to be its own separately-initialed choice, distinct from the general life-prolonging-treatment election: authorize withholding/withdrawal, decline to authorize it, or let a designated surrogate decide without binding them to either choice. Initialing the general treatment choice alone does not address nutrition and hydration.

Notwithstanding an executed living will directive, life-sustaining treatment and artificially-provided nutrition and hydration must generally be provided to a pregnant grantor, unless the attending physician and one other physician who has examined her certify in writing on her medical chart, to a reasonable degree of medical certainty, that the procedures will not maintain her in a way that permits the continuing development and live birth of the unborn child, will be physically harmful to her, or will prolong severe pain that cannot be alleviated by medication.

A Kentucky living will directive may authorize organ and tissue donation, which is governed by the Kentucky Revised Uniform Anatomical Gift Act, KRS 311.1911 to 311.1959. The statutory living will directive form itself includes an organ-donation election alongside its treatment-wishes and surrogate-designation elections.

A health care provider or facility notified of a grantor's living will directive must promptly make it part of the grantor's medical record. A provider unwilling to comply on moral, religious, or professional grounds must promptly inform the patient and family of the refusal and must not impede a transfer to a provider or facility that will comply.

A health care facility, physician, surrogate, or responsible party acting in good faith in accordance with a validly executed living will directive is not subject to criminal prosecution, civil liability, or professional discipline. A directive made in accordance with KRS 311.621 to 311.629 is presumed voluntarily and validly executed unless the attending physician or facility has actual knowledge otherwise.

Federal law requires Medicare- and Medicaid-participating hospitals, nursing homes, and other facilities to inform patients in writing of their right under Kentucky law to make an advance directive, including stating their own treatment wishes.

Federal HIPAA regulations govern how a designated health care surrogate can be authorized to access a grantor's protected health information once the surrogate-designation portion of a living will directive is in effect.

Kentucky separately authorizes an advance directive for mental health treatment, a different statute and document from the KRS 311 Living Will Directive. It lets an adult refuse specific psychotropic medications (not an entire class), refuse electroconvulsive therapy, state medication preferences, state emergency-intervention preferences, and provide other information, executed with its own two-witness-or-notary rule.

Kentucky law recognizes a person's authentic wish not to be resuscitated, for purposes of notifying an emergency medical responder or paramedic, only if stated on a standard form or identification approved by the Kentucky Board of Medical Licensure, or on a standard Medical Order for Scope of Treatment (MOST) form approved under KRS 311.6225.

An employee, owner, director, or officer of a health care facility where the grantor is a resident or patient may not be designated or act as the grantor's health care surrogate, unless that person is related to the grantor within the fourth degree of consanguinity or affinity, or is a member of the same religious or fraternal order as the grantor.