Questions and Answers about the Living Will and Other Healthcare Decisions Documents
Introduction
The 1990 session of the Kentucky General Assembly passed what has become known as "living will" legislation, which allows adult Kentuckians to sign a document saying that they do not want artificial life support should they become terminally ill. A living will needs to be signed in front of two witnesses or a notary public.
Two doctors would have to certify that the patient's condition was terminal before the living will would become effective. The living will would not allow the withholding of food, water or medicine to alleviate pain from a terminally ill patient and would not apply to pregnant women. It does not guarantee that you will escape being kept in a vegetative state.
Frequently Asked Questions
- What is a living will?
- Why would one want or need a living will?
- Where can additional information be obtained?
- Is an attorney needed in order to complete a living will or to designate a health care surrogate?
- Does a completed living will or designated health care surrogate form guarantee that a person will not be kept in a persistent vegetative state?
- What are the differences between a living will, a health care surrogate, an ordinary will, and a durable power of attorney?
- What does a person do with the living will, designated health care surrogate form or other document following completion?
- Is a living will or designation of health care surrogate executed in Kentucky by a resident of Kentucky valid in other states?
- Can a person still be an organ donor if he has a living will, designated health care surrogate form or a durable power of attorney?
- Is one type of document better than the other?
- Can a person sign both?
- Who can sign a living will?
- Who can sign a form designating a health care surrogate?
- Can a doctor, hospital, insurance company, nursing home, or family member force one to execute a living will or other document before providing treatment?
- Can a son or daughter witness a parent's living will?
- Can a son or daughter be a health care surrogate?
- What steps must be taken to revoke a living will or health care surrogate form if one changes his mind?
- Can an employee or director of a health care facility act as a surrogate?
- Can a relative keep a doctor from honoring a living will or health care surrogate designation?
- What happens if a surviving relative or guardian instructs a hospital or physician not to honor a living will or health care surrogate designation?
- Is there a civil or criminal liability for honoring a living will or health care surrogate?
- What happens if medical treatment is administered contrary to a persons wishes in a living will or by a health care surrogate? Who pays for the treatment?
- Must a doctor or hospital honor a living will or instructions from a health care surrogate?
- How does one know whether a hospital or health care facility will honor a living will?
- Where can one obtain additional copies of a generally accepted form to complete?
A living will is a document that enables a person to make his or her wishes known regarding life-prolonging treatment in advance of the time when the person is no longer able to participate actively in decisions concerning his or her medical care.
Why would one want or need a living will?
Medical technology has become so advanced that an individual can be kept "alive" on machines almost indefinitely. If one chooses not to be placed on these machines, a living will is one way to assure that one's wishes will be honored.
Where can additional information be obtained?
- Division of Aging Services, Commonwealth of Kentucky
(502) 564-6930
- Senior Citizen Center
- Family physicians
- Private attorney
- Legal Aid and Legal Services Corporation
- State Legislators or Legislative Research Commission
800-372-7181
- Kentucky Bar Association lawyer referral service
800-372-2999
- Kentucky Organ Donor Affiliates
800-525-3456
Is an attorney needed in order to complete a living will or to designate a health care surrogate?
No, as long as one of the attached forms is used. It is advisable to consult with some person considered qualified to assist in completing these documents.
However, if a person feels a need for a more detailed form, it would be advisable to consult with an attorney.
Does a completed living will or designated health care surrogate form guarantee that a person will not be kept in a persistent vegetative state?
No, but a recent United States Supreme Court ruling indicates that one has the right to draft a document indicating one's personal choice. Until Kentucky law prescribes another form, it is advisable to consult with an attorney.
What are the differences between a living will, a health care surrogate, an ordinary will, and a durable power of attorney?
Living Will - A document that enables an adult to make his or her wishes known regarding life prolonging treatment when the person is no longer able to participate actively in decisions concerning medical care when terminally ill. Authorized by KRS 311.622-644.
Health Care Surrogate - A document that designates another adult to make health care decisions when a person no longer has the capacity to make such decisions. Subject to certain exceptions in the law, the health care surrogate would have the power to authorize the withholding or withdrawal of life-prolonging treatment. Authorized by KRS 311.970-986.
Durable Power of Attorney - A document that allows a person to designate someone to make decisions for him regarding health, personal and financial affairs even when disabled.
Ordinary Will - A document that allows a person to designate to whom and how ownership of one's personal property and real estate will be distributed after death.
What does a person do with the living will, designated health care surrogate form or other document following completion?
These documents should be kept in a safe place, and a family member and a physician should be informed of the existence and location of the document(s).
When a surrogate is chosen, tell him and give him a copy of the document.
Is a living will or designation of health care surrogate executed in Kentucky by a resident of Kentucky valid in other states?
A check with officials in other states is needed in order to determine a particular state's requirements.
Can a person still be an organ donor if he has a living will, designated health care surrogate form or a durable power of attorney?
Yes. However, it is best to make that wish known in whatever health care decision document you choose. Additionally it is important to inform your family about your wish to be an organ/tissue donor.
Is one type of document better than the other?
Each document choice should be studied in light of one's own preferences or desires.
The law does not prohibit one from signing both; however, this may create some confusion and is not advisable. Individuals interested in combining the documents or using both should consult an attorney.
Anyone 18 years of age or older of sound mind can sign a living will.
Who can sign a form designating a health care surrogate?
Anyone 18 years of age or older of sound mind and possessing decisional capacity (the ability to make and communicate a health care decision) can designate a surrogate.
Can a doctor, hospital, insurance company, nursing home, or family member force one to execute a living will or other document before providing treatment?
No.
Can a son or daughter witness a parent's living will?
No. The law required two witnesses, but the witness cannot be blood relatives; cannot be an employee of a health care facility in which the parent is a patient; cannot be an attending physician of the patient nor any person financially responsible for the patient's health care.
Can a son or daughter be a health care surrogate?
Yes.
What steps must be taken to revoke a living will or health care surrogate form if one changes his mind?
Any of the following will revoke either document:
- a written, signed and dated statement indicating a clear intent to revoke;
- an oral statement which reveals intention to revoke; or
- by destroying or having destroyed all copies of the document.
Can an employee or director of a health care facility act as a surrogate?
No, unless he/she is a relative of the patient.
Can a relative keep a doctor from honoring a living will or health care surrogate designation?
No.
What happens if a surviving relative or guardian instructs a hospital or physician not to honor a living will or health care surrogate designation?
A relative cannot legally do so. A hospital does not have the authority to follow the relative's instructions contrary to a valid living will or health care surrogate.
Is there a civil or criminal liability for honoring a living will or health care surrogate?
No.
What happens if medical treatment is administered contrary to a persons wishes in a living will or by a health care surrogate? Who pays for the treatment?
Generally, it is unlawful to render medical treatment against a patient's wishes and those administering the treatment may be subject to civil liability. New laws do not address this issue explicitly; however, a health care facility may not be entitled to charge for medical treatment rendered contrary to one's living will or health care surrogate.
Must a doctor or hospital honor a living will or instructions from a health care surrogate?
No. However, if they do not honor the living will or health care surrogate, they must notify the patient or family immediately. If one is already a patient and request it, the hospital must assist in the transfer to a hospital/doctor which or who will honor the living will. Failure to honor the living will or health care surrogate and to assist in the transfer could result in legal action against the hospital and doctor and might keep services from being paid.
How does one know whether a hospital or health care facility will honor a living will?
The hospital or health care facility must be asked.
Where can one obtain additional copies of a generally accepted form to complete?
Copies can be obtained from:
- Legislators
- Division of Aging Services, Commonwealth of Kentucky
- Senior Citizens Centers
- Legal Services Corporations
- Attorneys
- Attorney General's Website