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Living Will in Kentucky: The Living Will Directive and Health Care Surrogate
Kentucky's living will directive names a health care surrogate and records treatment wishes in one document, signed before two adult witnesses or a notary. Here is how it works, and who decides without one.
By naveen · Updated · How we research our guides
What to know
- A Kentucky living will directive can name a health care surrogate, state wishes about life-prolonging treatment and tube feeding, and address organ donation, all on one statutory form (KRS 311.625).
- It must be dated and signed, then witnessed by two adults or acknowledged before a notary; blood relatives, heirs, the attending physician and certain others can't serve as either.
- The surrogate can't make a decision while the attending physician finds your parent still has decisional capacity.
- Without one, Kentucky law sets an order of responsible parties, starting with a guardian, then a health care attorney-in-fact, then the spouse (KRS 311.631).
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
A Kentucky living will, formally a living will directive, is one statutory form that can name a health care surrogate and record your parent's treatment wishes, signed before two adult witnesses or a notary. It's made under the Kentucky Living Will Directive Act, KRS 311.621 to 311.643. "An adult with decisional capacity may make a written living will directive that does any or all of the following," including naming a surrogate to make health care decisions. Under KRS 311.625, it must be in writing, dated and signed, and "either witnessed by two (2) or more adults in the presence of the grantor and in the presence of each other, or acknowledged before a notary public or other person authorized to administer oaths."
What is a living will directive in Kentucky?
It's the advance directive set out in Kentucky's statute, with a form the directive "shall be substantially in." Your parent, the grantor, can use it to:
- direct that life-prolonging treatment be withheld or withdrawn, or not;
- direct that artificially provided nutrition and hydration be withheld or withdrawn, or not;
- designate one or more adults as health care surrogate, with a successor;
- authorize or decline organ donation.
An adult here means someone 18 or older and of sound mind. If your parent names two or more surrogates serving together, "all decisions shall be by unanimous consent of all the acting surrogates unless the advance directive provides otherwise." The form also states that "this directive shall have no force or effect during the course of my pregnancy" if a pregnancy is diagnosed and known to the attending physician.
How is the health care surrogate different from the living will part?
The surrogate part names a person to make health care decisions for your parent, while the living will part records your parent's own choices about life-prolonging treatment and tube feeding.
| Part of the form | What it does | When it applies |
|---|---|---|
| Health care surrogate designation | Names a person to make health care decisions for your parent | When your parent no longer has decisional capacity |
| Living will directive | Records choices about life-prolonging treatment and artificial nutrition and hydration | As the form puts it, if your parent no longer has decisional capacity, has a terminal condition, or becomes permanently unconscious |
In Kentucky these sit in one document, and your parent can fill in either part or both. If a surrogate is named, the surrogate follows the wishes recorded in the directive. A separate financial power of attorney doesn't cover these decisions by default; see our Kentucky power of attorney guide. For the general picture, see power of attorney vs. advance directive.
How do you sign a Kentucky living will?
Your parent dates and signs it, or someone signs at their direction. Then either two or more adults witness it, in your parent's presence and each other's, or your parent acknowledges it before a notary. The Attorney General's guidance says, "You may wish to use a Notary Public in lieu of witnesses."
Under KRS 311.625(2), none of these people can be a witness or the notary:
- a blood relative of your parent;
- a person who would inherit from your parent under Kentucky's descent and distribution law;
- an employee of a health care facility where your parent is a patient, unless that employee is serving as the notary;
- your parent's attending physician;
- anyone directly financially responsible for your parent's health care.
Because adult children are both blood relatives and heirs, none of your parent's children can witness the form or notarize it. A friend or neighbor who won't inherit from your parent, or an unrelated notary, can meet the rule.
Who can't serve as the health care surrogate?
An employee, owner, director or officer of a health care facility where your parent is a resident or patient can't be designated or act as surrogate, unless related to your parent within the fourth degree by blood or marriage, or a member of the same religious or fraternal order (KRS 311.625(4)). Family members aren't excluded from serving as surrogate, only from witnessing.
A surrogate can resign at any time with written notice to your parent, any successor surrogate, the attending physician, and any facility waiting on a decision.
When does the surrogate start making decisions?
Only when your parent can't decide. "The surrogate may not make a health care decision in any situation in which the grantor's attending physician has determined in good faith that the grantor has decisional capacity" (KRS 311.629). Decisions must follow your parent's wishes in the directive, and the surrogate must consider the attending physician's recommendation.
The statute narrows decisions about tube feeding: a surrogate can authorize withholding or withdrawing artificial nutrition and hydration only in listed situations, such as when death is expected within a few days, and never when it's needed for comfort or pain relief. If a court later appoints a guardian, "the fiduciary shall be bound by the terms of the grantor's advance directive," and the surrogate may continue to act.
Who makes medical decisions in Kentucky if there's no living will?
A responsible party, in this order of priority under KRS 311.631, moving down only if no one in an earlier class is reasonably available, willing and competent:
- a court-appointed guardian whose authority covers medical decisions;
- an attorney-in-fact under a durable power of attorney that specifically includes health care decisions;
- the spouse;
- an adult child, or a majority of the adult children reasonably available;
- the parents;
- the nearest living relative, or a majority of the nearest relatives;
- an adult friend who has kept regular contact and knows your parent's activities, health, and religious and moral beliefs.
The responsible party must act in good faith, follow any advance directive, and act "in the best interest of the individual who does not have decisional capacity." The decision is noted in writing in the medical record.
How do you revoke a living will in Kentucky?
Under KRS 311.627, your parent can revoke it with a signed and dated writing, by an oral statement made with decisional capacity in front of two adults, one of them a health care provider, or by destroying it or having someone destroy it in their presence at their direction. "Any revocation made pursuant to this section shall become effective immediately," though a doctor or facility doesn't have to act on it until they get notice.
While your parent has decisional capacity, they can also revoke or limit the surrogate designation at any time, and a new designation revokes an earlier one.
What about MOST?
A MOST form, Kentucky Medical Orders for Scope of Treatment, is an actionable medical order. It's signed by your parent, their surrogate or a responsible party, and by the physician, and it covers CPR, medical interventions, artificial nutrition and antibiotics. The statute's required wording says, "If there are conflicting directions between an enforceable living will and a MOST form, the provisions of the living will shall prevail." The Kentucky Board of Medical Licensure publishes the form.
Frequently asked questions
Does a living will need to be notarized in Kentucky?
No, a notary is one of two options. Under KRS 311.625, your parent's living will directive must be witnessed by two or more adults, or acknowledged before a notary. The same people are barred from both roles: blood relatives, heirs, the attending physician, anyone directly financially responsible for your parent's care, and employees of their health care facility unless serving as the notary.
Can a family member witness a living will in Kentucky?
Not a blood relative, and not anyone who would inherit from your parent under Kentucky law, so adult children and siblings can't witness or notarize it. The attending physician, anyone directly financially responsible for your parent's health care, and facility employees other than a notary are also excluded. A family member can still be named surrogate.
Where can I get a Kentucky living will form?
The form is printed in KRS 311.625, and the Kentucky Attorney General publishes a free Living Will Packet with instructions, in standard print, large font and Spanish. The packet says, "You are not required by law to use these forms." Give copies to the doctor and the surrogate; the packet says not to send it to the Attorney General.
Is a living will from another state valid in Kentucky?
The Kentucky Living Will Directive Act sections we read don't include a specific rule for documents signed in another state. They do say the act doesn't restrict providers from "following other written advance directives consistent with accepted medical practice." If your parent splits time between states, an elder law attorney can confirm what covers both.
Does my parent's spouse automatically make decisions in Kentucky?
Only if there's no living will designating a surrogate, no guardian with medical authority, and no attorney-in-fact with health care authority. Under KRS 311.631 the spouse comes next, then adult children by majority, then parents, then the nearest relatives, then a close adult friend. A named surrogate avoids relying on that list.
Can my parent change their mind after signing?
Yes. Your parent can revoke a living will directive with a signed, dated writing, by telling two adults, one of them a health care provider, or by destroying it. The revocation takes effect immediately, but it's worth telling the doctor and facility right away, since they don't have to follow it until they're notified.
Getting started
A living will only helps if it's signed while your parent can sign it, with the right witnesses or a notary, and if a copy reaches the doctor. The Attorney General's guidance is direct: "You are responsible for telling your hospital or nursing home that you have a Living Will." The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- Kentucky Revised Statutes Chapter 311, Kentucky Living Will Directive Act: definitions (311.621), the directive and MOST (311.623 and 311.6225), the form and signing rules (311.625), revocation (311.627), the surrogate (311.629), responsible parties (311.631) and other directives (311.637); published by the Legislative Research Commission.
- Kentucky Office of the Attorney General, Living Wills in Kentucky: guidance and the free Living Will Packet.
- Kentucky Board of Medical Licensure, MOST form: the Medical Orders for Scope of Treatment form.
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