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Jenkins Fenstermaker, PLLC

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Huntington, WV 25701-2225

Phone (304) 523-2100

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By Anna Melissa Price Of Jenkins Fenstermaker, PLLC on 06/04/2019
KY Durable Power of Attorney and Living Will: Is Your Family Prepared?

Advance medical directives-documents that inform medical providers of your wishes for treatment should you become incapacitated-are an important part of long-term care and estate planning. Residents of Kentucky (KY) should be aware of the specific regulations governing KY durable power of attorney arrangements and KY living will documents.

It's understandable that people find planning for their own incapacity and death unsettling; the associated images are truly unpleasant. However, the reality of the burdens placed on family members when you do not communicate your wishes through appropriate documentation are far more troubling. A lawyer for health care directives in KY can offer compassionate guidance that eases the strain of this kind of planning.

Plan Ahead with KY Durable Power of Attorney and Living Will Directives

A KY durable power of attorney directive appoints a specific person or people who will manage your financial affairs and health care if you become incapable of doing so. This person can be designated in your KY living will, in another advance directive, or in a separate power of attorney document.

When you want a specific person to continue as your power of attorney if or when you are incapable of making decisions, you must be sure that the power of attorney documents you create and sign are indeed durable, meaning these documents specify your wish for your designated power of attorney to make decisions on your behalf after your incapacitation.

KY Durable Power of Attorney and Living Will: Is Your Family Prepared?

How to Create a KY Durable Power of Attorney for Health Care Decisions

Any adult who is capable of making decisions can assign a KY durable power of attorney for health care decisions by completing the appropriate documentation and then dating and signing the documents in the presence of witnesses, as required by state law. A lawyer for health care directives in KY can help you understand the implications of any directives you create and ensure that all necessary steps are taken to create documents that are legally binding.

The guidelines for creating a legally binding KY living will and durable power of attorney are set forth in the Kentucky Living Will Directive Act of the Kentucky Revised Statutes (KRS). Among other provisions, Ky. Rev. Stat. §§ 311.621 to 311.643 outline the specific form of these documents, the powers granted, and how to revoke a durable power of attorney.

The Kentucky Uniform Power of Attorney Act sets out additional requirements for legally binding power of attorney privileges. This statute, Ky. Rev. Stat. § 457, was amended on July 14, 2018, in part to clarify the definition of a durable power of attorney and require that these directives be signed by the creator-or principal-in the presence of two disinterested witnesses or a certified notary public, each of whom must also sign and date the document.

Powers Granted to a Health Care Surrogate under the Kentucky Living Will Directive Act

A person designated as a durable power of attorney in KY by documents created in accordance with the Kentucky Living Will Directive Act has the authority to make health care decisions for the individual represented if that person becomes unable to make those decisions. The law requires that these decisions be made with regard to the advice of an attending physician and with respect to any wishes made known by the incapacitated person through a KY living will or other medical directive.

A health care surrogate can choose to withhold life-extending medical treatment, including nutrition and hydration, only when one of the following requirements is met:

  • Death is medically probable within a period of days
  • Providing nourishment or hydration is not medically or physically possible
  • The burden of the treatments is greater than the potential benefits, although treatment should be continued if required for comfort or pain relief
  • A permanently unconscious patient has given an advance directive that requests that life-extending treatments not be given

How to Revoke a Durable Power of Attorney Directive

Life takes unexpected turns. It is possible that you might, at some point, have a desire to revoke a durable power of attorney directive that you previously created. The Kentucky Living Will Directive Act provides the methods by which this revocation of duties can take place.

The first is for the principal, or grantor, of the original document to make his or her wishes to revoke a durable power of attorney known in writing and then sign and date the new document.

The grantor can also destroy the original document, with the intent to invalidate it, in the presence of others-or have another person destroy the document in the grantor's presence and at his or her request.

The final way to revoke a durable power of attorney privilege is to make an oral statement regarding the wish to revoke. This statement must be made by the grantor, while decisional capacity is still retained, in the presence of two adults, and one of those individuals must be a health care provider.

What Happens When You Don't Designate a KY Durable Power of Attorney for Health Care?

When an adult has not designated a health care surrogate or adequately outlined his or her wishes related to medical care and that person become incapacitated, the authority to make medical decisions is appointed to the next-of-kin as defined by the Kentucky Living Will Directive Act.

If no court-appointed guardian or durable power of attorney exists, a spouse is responsible for medical decisions related to end-of-life care. If there is no spouse or that person is unwilling or unable to make the decisions, adult children are consulted, then parents, and, finally, any nearest relative.

Disputes often arise among family members when a person becomes unexpectedly incapacitated and that person's wishes regarding life-extending medical treatment are either not know or have not been properly articulated. A lawyer for health care directives in KY can help you create the appropriate documents to provide guidance to your loved ones should the unthinkable happen.

Anna M. Price, of Jenkins Fenstermaker, PLLC, is an experienced, caring lawyer for health care directives in KY, West Virginia (WV), and Ohio (OH). If you would like assistance creating your KY durable power of attorney, KY living will or other advance health care directives, contact Anna today by calling (304) 523-2100 or (866) 617-4736 toll-free or complete this online contact form.