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Kentucky Durable Power of Attorney Laws

A durable power of attorney is a legal document assigning another person to take care of your affairs for you should you become incapacitated. This person, your agent, usually is enlisted to take care of your financial or healthcare matters. For the financial matters, the agent can pay your bills, invest on your behalf, rent or sell your property, etc. For health care, the agent will be able to consent to medical treatment for you, should you become incapacitated. This is generally part of an advance health care directive or living will that also states your wishes as to live support and organ donation.

The following table outlines the main Kentucky durable power of attorney laws.

Code Sections Kentucky Revised Statutes Chapter 311, Sections .621 to .643 – Kentucky Living Will Directive Act
Specific Powers of Agent and Life-Prolonging Acts
The agent can make health care decisions that the incapacitated person could make if he or she had decisional capacity, provided all decisions are in accordance with that person’s wishes and the agent or health care surrogate has considered recommendations of the attending doctor. These decisions include withholding or withdrawal of artificial nutrition or hydration if:
  1. Death is imminent (expected within a few days)
  2. Nutrition can’t be providing physically
  3. Burden of providing the artificial nutrition and hydration outweighs the benefit, although not to be withdrawn if needed for comfort or relief of pain
  4. When the patient is in permanently unconscious state and advanced directive has authorized withdrawal or withholding of such nutrition and hydration
Legal Requirements for Durable Power of Attorney A health care durable power of attorney can be created, like a living will, by:
  1. An adult capable of making decisions, the surrogate can’t make decisions when the doctor has determined in good faith that the creator lacked decisional capability
  2. Document in writing, dated, and signed by creator
  3. With one or two adults designated as surrogates, but if two or more are assigned, any decisions must be unanimous
  4. With two adult witnesses, signed in the presence of the document creator/signor, and in the presence of each other OR notarized
Revocation of Durable Power of Attorney An advanced health care directive, much like a regular will, can be revoked or limited in scope at any time the creator has capacity by:
  1. Oral statement of the intent to revoke in the presence of two adults, one of whom is a health care provider
  2. Destruction of the directive or declaration with an intent to revoke, this could be by burning, defacing, or otherwise destroying the document

This revocation is effective immediately for the attending physician once the revocation is received. The oral statement to revoke by the person with the living will, as long as has decisional capacity, overrides a previous written directive.

Validity of Directives from Other States
Health care providers can follow a directive creating a health care agent, even if it’s not fully complying with the Kentucky laws, as long as consistent with accepted medical practice. This means a durable power of attorney created validly in another state should be valid in Kentucky.
If Physician Unwilling to Follow Durable Power of Attorney The doctor who’s unwilling to remove life support (or has another objection), must immediately inform the patient and family or guardian of this problem. Then, the doctor won't stop a transfer to a complying doctor or hospital. The patient's medical records, including the directive, will be supplied to the receiving physician or facility.
Immunity for Attending Physician Doctors can’t be doctors criminally prosecuted or sued in civil court or found to have engaged in unprofessional conduct due to withholding or withdrawing life-prolonging treatment as requested in a directive, unless shown by a preponderance of the evidence (more likely than not) that there was bad faith, such as the document was clearly falsified or the person claiming to be the surrogate wasn’t the agent, etc.

Hospitals and health professional licensing agencies aren’t permitted to discriminate against health care professionals that are unwilling to comply with the advanced directive of a patient as long as he or she complies with the notification of the family and transfer of the patient legal requirements.

You can plan for your future by creating your own advance health care directive appointing an agent as your health care power of attorney. This can also include a living will directing doctor as to your wishes if you are incapacitated. If you would like assistance in the drafting and execution of such a document, you should consult with an experienced Kentucky estate planning lawyer.

Note: Because state laws are constantly regularly, you should verify the laws you’re reading about by conducting your own legal research or contacting an attorney.

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