A primer on the Kentucky Living Will Directive Act, part 1

We provide comprehensive estate-planning services to Kentuckians. Most understand that estate planning encompasses wills, trusts, powers of attorney, gifting, and related tax planning – and they are correct – but many forget a critical component of essential planning: the living will, a document that sets forth instructions for making healthcare decisions when a person is no longer able to make the decision for themselves.

Many people have strong feelings about their wishes, others have given this issue no thought at all. The decisions evidenced in and instructions set forth in a living will are difficult issues related to life and death, and they require significant reflection and discussions. In addition, while these issues normally present at the end of life, they can arise at any age during unexpected illness or following accidental injury, so it is wise to think about who you would consider naming as your healthcare surrogate (or surrogates, including backup surrogates) to make decisions for you. What instructions do you want to leave about providing, withholding, or terminating life support procedures, such as the use of ventilators or mechanically administered hydration or nutrition, when you cannot make the decision for yourself?

Kentucky Living Will Directive Act

Since 1994, the primary state law applicable in these circumstances is the Kentucky Living Will Directive Act, which includes a living will form. With a living will, a person at least 18-years-old (the “grantor”) designates a healthcare surrogate to make medical decisions on their behalf in case the grantor loses “decisional capacity,” defined as the “ability to make and communicate a health care decision.”

One of a variety of “advance directives,” a living will can also include the grantor’s instructions about:

  • Whether to provide or refuse treatment that would prolong life
  • Whether to give or withhold nutrition or hydration through a feeding tube
  • Whether to donate the grantor’s organs

Seek legal counsel

An experienced Kentucky estate planning attorney can answer questions about the Act and its options. A lawyer can assist with the official form or provide advice about whether to revise it or draft another. They can also explain what happens under state law if no validly executed living will exists for a person who loses decision making capacity.

In part 2 of this series, we’ll further discuss the Kentucky Living Will Directive Act, including its provision for a related document called the medical order for scope of treatment (MOST form).


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