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The health care power of attorney allows someone to name a person (or persons, including successors) to make medical decisions for the appointing person if they cannot make decisions on their own because of mental incapacity like unconsciousness or inability to communicate or understand medical decisions for themselves.

Other phrases for a health care power of attorney are health care surrogate and medical power of attorney.

Choose your health care surrogate carefully

A Kentuckian may choose to execute their health care power of attorney as part of a comprehensive estate plan, or take care of it separately. Either way, the person should take time to think about who would be best suited to act as their medical surrogate.

People look at this decision through their own lens, but relevant factors include:

  • Whether the person would be comfortable carrying out the patient’s wishes
  • Whether there should be joint surrogates or just one and whether to name successor surrogates
  • Whether the person could communicate their decisions to the patient’s family and whether there is potential for conflict with the patient’s relatives
  • How the person handles stress
  • Whether the person has a medical background
  • Whether the person understands the patient’s personal values as they relate to emergency and end-of-life treatments

It is smart to have a frank discussion with the potential surrogate about the role and their feelings about serving.

The Kentucky Living Will Directive Act

The Kentucky Living Will Directive Act is comprehensive legislation addressing issues of substitute medical decision making in case of medical incapacity, including situations when patients face permanent unconsciousness or are at end of life. A person chooses their health care power of attorney in a living will directive.

Understandably, given the seriousness of its purpose, this law contains very detailed requirements for how to execute a valid living will directive and what it can contain. Broadly, in addition to health care surrogacy, these are the other components of Kentucky’s overall medical directive scheme:

  • MOST form: The medical order for scope of treatment (MOST) form allows a Kentuckian with an advanced medical condition to write comprehensive direction for medical providers about what medical intervention the person wishes in case of medical incapacity, including resuscitation or CPR, treatment preferences when pulse or breathing ability remain, antibiotic use, hydration, and nutrition.
  • Living will directive: This directive gives a Kentuckian the opportunity to give binding direction about “life-prolonging treatment,” artificial nutrition or hydration, organ donation, and appointment of a surrogate.

In Kentucky, when a patient loses their “decisional capacity,” their surrogate can make medical decisions for the patient (called the grantor) that the patient could have made for themselves, but must comply with instruction in the living will, take into account the doctor’s recommendation, and stay within other limits set out in the Act.