Understanding durable powers of attorney, living will directives, healthcare surrogate designations and organ donation in Kentucky
We're living in an age of medical miracles. Tiny babies born months too early can often be saved. Hearts, lungs, kidneys and livers can all be transplanted. There are life support machines and devices for almost every purpose -- ventilators to help people breathe, cardiac assist devices to take over for the heart, feeding tubes to nourish patients who can't eat, and dialysis to support people with failing kidneys.
Medical advances have saved many lives. But with these advances have come questions about using machines to prolong the natural dying process.
Kentucky law recognizes your right to make choices about your medical care. You have the right to request or refuse treatment and to ask that life-prolonging treatment be stopped.
You also have the right to make out an advance directive. An advance directive is a legal paper which lets you state your wishes about the use of life support machines and medical treatment. It can also be used to name someone else to make medical choices for you if you become unable to speak for yourself.
The decision to make an advance directive is a personal one and should only be made after careful consideration. Before you make your decision, you may want to talk with your family, friends, pastor, doctor or lawyer. Baptist East takes no position on advance directives. This information is provided to help our patients and their doctors make informed decisions about healthcare. To request a printed brochure, which includes the form for a Living Will Directive for the Commonwealth of Kentucky, call the Baptist Health Information Center at (502) 897-8131.
A videotape called, "The Right to Make Informed Decisions," is also available through public libraries in Jefferson, Oldham, Henry, Trimble, Spencer, Shelby and Bullitt counties.
About advance directives
Q. What is an advance directive?
A. An advance directive states, in writing, your choices about medical care or names someone to make medical choices for you if you become unable to speak for yourself. It is called an advance directive, because it is signed in advance to let your family and doctor know your wishes regarding medical treatment. Kentucky law recognizes many types of advance directives, including living wills, healthcare surrogate designations, durable powers of attorney and living will directives.
Q. Who can make an advance directive?
A. Any person age 18 or over who is of sound mind may make an advance directive.
Q. Do I have to have an advance directive?
A. No. You cannot be required to make an advance directive in order to get medical treatment, health insurance or for any other reason. It is purely a matter of personal choice.
Q. Who makes my healthcare decisions if I can no longer do so and I have not made out an advance directive?
A. If you cannot speak for yourself and you do not have an advance directive, the following people, in the order listed, may make decisions for you under Kentucky law:
- A guardian, if the court has appointed one for you;
- Your spouse;
- Your adult child, or if you have more than one, the majority of your adult children who are available to be asked about your care;
- Your parents; or
- Your nearest living relative, or if you have more than one relative of the same relation available, a majority of them.
Generally, these people have the same authority to make decisions as a surrogate appointed by you would have, and they must act in your best interests.
About living will directives
Q. What may be included in a living will directive?
A. A living will directive may include one or more, or all, of the following:
- Directions that life-prolonging treatment not be provided, or once started, that such treatment be stopped;
- Directions that food (nutrition) and water (hydration) not be provided through artificial means, such as tubes, or once started, that they can be stopped; and/or
- Choice of one or more persons to act as your surrogate and make decisions for you if you become unable to speak for yourself.
Your living will directive may also state that you do not authorize the refusal or removal of life support devices or artificially-provided nutrition and hydration. You may also include any other special directions, as long as they are not prohibited by law and follow accepted medical practice.
Q. What is life-prolonging treatment?
A. Life-prolonging treatment is medical care that is used to keep a vital body function going after it fails because of illness or injury. Examples of such care include ventilators to do the work of your lungs, dialysis to do the work of your kidneys, cardiac assist devices to take over for your heart, or tubes through which you are fed.
Of course, these machines and procedures are used every day in hospitals to help people get better. They are only considered life-prolonging treatment when they will not help you recover and will only prolong the dying process.
Q. Under a living will directive, when can life-prolonging treatment be withheld or stopped?
A. If you have decided against life-prolonging treatment, then it will not be provided if your doctor and one other doctor agree that:
- You are permanently unconscious; or
- You have a condition that cannot be cured, you won't get better, you are expected to die within a relatively short time, and treatment will only prolong the dying process.
- Life-prolonging treatment that has been started will also be stopped under these circumstances; however, this may not be true if you are pregnant.
Q. If I decide against life-prolonging treatment, will I still receive medicine for pain if I need it?
A. Yes. You will still receive medicine for pain and any other care that you need for your comfort.
Q. Does an advance directive apply if a woman is pregnant?
A. Under Kentucky law, a pregnant woman must always receive life-prolonging treatment, including artificially-provided nutrition and hydration, unless her doctor, and one other doctor who has examined her, decide that the baby cannot be saved or that treatment harms the woman or causes her uncontrollable pain.
Q. What is a healthcare surrogate?
A. A healthcare surrogate is a person you appoint in your living will directive or another written document to make medical decisions for you if you are not able to speak for yourself.
Q. What kinds of decisions can a surrogate make?
A. The surrogate you appoint has the power to make any medical care decision you could make yourself, except:
- Your surrogate may decide to withhold or stop artificial nutrition and hydration only if death is expected in a few days, the feedings can't be absorbed or digested, or if the burden of providing the tube feeding outweighs or is greater than the benefit.
- Your surrogate may not refuse or stop artificially-provided nutrition and hydration if you are permanently unconscious unless you have given him/her permission to do so in an advance directive.
- Surrogates cannot reject life-prolonging treatment for pregnant women except in limited circumstances. (See Q. Does an advance directive apply if a woman is pregnant?)
- Surrogates must honor wishes included in an advance directive, and must consider the advice of your doctor.
Q. Who may act as a surrogate?
A. Anyone 18 years or older may be a surrogate except employees, owners, directors or officers of a hospital or nursing home where you are receiving care (unless that person is related to you or a member or your religious order.)
Q. Can more than one person serve as a healthcare surrogate?
A. Yes. You can name more than one person to act as your surrogate. People who have several children often do. However, all of your surrogates must agree on any decision regarding your health are, unless your advance directive states otherwise. If they cannot agree on a decision, the healthcare decision will be made as if no surrogates existed. You may also name an alternate surrogate in case the person you chose first is unavailable, unable or unwilling to serve.
Q. Can I limit the power of my healthcare surrogate?
A. Yes. In your advance directive, you can state what you want your healthcare surrogate to do or not do.
Q. Can a surrogate resign?
A. Yes. A surrogate can resign at any time by giving written notice to you, your alternate surrogate, your doctor and the hospital or nursing home where you are receiving care.
Durable powers of attorney
Q. What is a durable power of attorney?
A. A durable power of attorney is an advance directive that lets you name someone (known as your attorney-in-fact) to make medical decisions for you if you are unable to speak for yourself. A durable power of attorney is similar to naming a healthcare surrogate, but you may also give your attorney-in-fact power to make decisions about your personal and financial affairs. For example, you may give your attorney-in-fact the power to write checks to pay your bills, to file income tax returns or to sell property for you.
Q. How do I make out a durable power of attorney?
A. No special form is required under Kentucky law, but certain special words must be included. A durable power of attorney must contain the words: "This power of attorney shall become effective upon the disability of the principal" or similar wording to show that you give your attorney-in-fact the power to make medical choices for you when you can't speak for yourself. A durable power of attorney that grants someone general powers over your property, but does not mention healthcare decisions, may not be accepted by healthcare providers when medical decisions must be made.
Because a durable power of attorney is a complicated document which can contain many variations on health, personal and financial decisions, you should talk with a lawyer before making one out.
More questions and answers about advance directives
Q. How do I make out an advance directive?
A. Your advance directive must be in writing. You may use the Living Will Directive form set out by the legislature (which is available by calling the Baptist Health Information Center at (502) 897-8131 or another form. If you want to use another form or change the Living Will Directive form, you may want to consult with a lawyer.
Your advance directive must be dated and signed by you. It must also be signed by two witnesses or a notary public. Witnesses cannot be:
- your blood relative;
- an heir to your estate;
- an employee of a hospital or nursing home where you are receiving care (an employee may sign as a notary public but not as a witness);
- your doctor; or
- any person who must pay for your healthcare.
Q. Is an advance directive made in another state valid in Kentucky?
A. It may be, but to make sure you have a legal advance directive, you may want to have your lawyer review it.
Q. Will my Kentucky advance directive be honored in another state?
A. State laws on advance directives vary, so it is impossible to know whether a Kentucky advance directive will be honored wherever you are. If it clearly states your wishes about medical care, it should have some influence in decisions about care no matter where you are. If you plan to spend a great deal of time in another state, you might want to consider signing an advance directive that meets all the legal requirements of that state.
Q. Once I have signed an advance directive, can I ever change it or revoke it?
A. Yes. You can change or revoke your advance directive at any time by:
- stating those wishes in a signed and dated document;
- stating them orally in the presence of a healthcare provider and one other adult witness; or
- simply destroying your advance directive.
If you choose to change or revoke your advance directive, be sure to immediately tell your doctor, any hospital or nursing home where you are receiving care, any healthcare professionals who are caring for you in your home, and family members or friends.
Q. What should I do with my advance directive once it is completed?
A. Keep the original in a safe place, but do not put it in a safety deposit box, because you or your family may not be able to get to it if you need it in an emergency. Make sure that family members or close friends have copies. You should also give a copy to your doctor and discuss it with him or her. Your doctor will put the copy in your medical file.
You are responsible for telling your hospital or nursing home that you have an advance directive. You should also provide them with a copy. If because of your physical or mental health you can't do that, someone else may give the facility a copy.
Each time you are admitted for an overnight stay in a hospital or nursing home, you will be asked whether you have an advance directive. This is required by federal law. You should also bring a copy of your advance directive with you each time you are admitted to the hospital. This policy protects you by assuring the hospital that the advance directive it may have from a prior hospital stay is still valid.
Q. Where can I get help to make out an advance directive?
A. A good place to start is by talking to your doctor, a hospital chaplain or social service staff. You may also want to talk to a lawyer about the differences between a living will directive, a durable power of attorney and other types of advance directives. If you don't have a lawyer, you may call the Kentucky Lawyer Referral Service at (502) 583-1576. The Lawyer Referral Service can provide you with the names of attorneys who practice in your area.
Q. Will my doctor, the hospital and the nursing home do what my advance directive asks?
A. Generally yes, as long as the directive is valid. However, the doctor, nursing home or hospital may refuse to honor your wishes for moral, religious or professional reasons. If that happens, under Kentucky law, the doctor or hospital must immediately tell you, your surrogate or attorney-in-fact, and your family. They must also transfer you to another doctor or facility that will do what you want.
Q. Do dying patients with advance directives receive the same care as other hospital patients?
A. Yes. Each patient is given the same quality care regardless of whether or not an advance directive exists. Every effort is made to keep all patients comfortable during their final hours or days. Our patients are given the medical and nursing care they need to ease suffering and the dying process. Our chaplains, social service staff and nurses are always ready to discuss any questions or concerns with you and your family.
Q. What happens when someone with an advance directive is rushed to the emergency room with a life-threatening emergency?
A. People with an unexpected medical emergency don't often arrive at the emergency room carrying an advance directive. Also, it is sometimes difficult for ER doctors and staff to know if the sick or injured person has a valid advance directive or whether it applies at that moment. For example, it takes two doctors, and perhaps some tests and time, to determine if a patient has a terminal condition or is permanently unconscious. In addition, surrogates or attorneys-in-fact must be found before they can make medical choices.
For these reasons, the hospital's emergency room staff will make every effort to save your life. This may include giving CPR (cardiopulmonary resuscitation) to get the heart beating again or using life support machines such as ventilators. Of course, life support machines can later be removed and treatment stopped at your request or the request of your surrogate or attorney-in-fact.
Q. Will EMS personnel honor my advance directive?
A. In most cases, emergency medical personnel and paramedics will make every effort to save your life. Kentucky law states that a person's wish not to be resuscitated will not be honored by EMS personnel unless there is a standard form or identification form from the Kentucky Board of Medical Licensure. For a copy of this form, call the Baptist Health Information Center at (502) 897-8131.
Organ transplants are truly a miracle of modern medicine. Thousands of organ transplants occur in the United States each year, yet thousands of people also die each year while waiting for an organ. The generous gift of one's organs or tissues can allow other seriously ill individuals to live. This information is included to help you give thoughtful, prayerful consideration to organ donation.
Q. Who may donate an organ?
A. Anyone can become an organ donor. Old age or a history of disease does not mean you can't donate.
Q. Will signing a donor card affect the care I receive at the hospital?
A. No. Each patient is given the same quality care, whether or not a donor card has been signed. Donation procedures only begin after all efforts to save your life have been made and death has been declared.
Q. To whom may an organ be donated?
A. An organ or a body may be donated to a hospital or physician, a medical or dental school or to an individual in need of a transplant. Also, the gift may be made without specifying who is to receive it, which is not unusual.
Q. Will my organs ever be taken for transplant without my consent or the consent of my family?
A. In cases where an autopsy is needed, such as an accidental death or death as a result of a crime or other unusual circumstance), the coroner or medical examiner may authorize removal of corneas of eyes, unless he or she knows of an objection to that. Otherwise, organs can only be removed and used for transplant if either you or a family member consents.
Q. How is an organ donation made?
A. Through a written document signed in front of two witnesses, you may donate all or some of your organs, tissue or body. You can also use the back of your driver's license, or your advance directive, if you wish. Although Kentucky law permits it, you should not include your wishes regarding organ donation in your will, because your will is generally not available until it is too late to use your organs. An organ donation form that you may wish to consider can be ordered through the Baptist Health Information Center by calling (502) 897-8131.
Your family may donate your organs by a signed document, or in a telegram or recorded phone message.
Q. What if I want to donate my organs, but my family objects?
A. Under Kentucky law, the decision to donate your organs is yours, except when the coroner needs to perform an autopsy. Your wishes should prevail over your family's objections. If your family really understands your wishes, they may not object, which is a good reason to make any strong wishes you have about organ donation known.
Q. Will a hospital ask me or my family about organ donation?
A. Both state and federal law encourage organ donation and under those laws, hospitals are required to have policies to offer organ donation as an option. When a person dies or is in a terminal condition, the patient or family is usually asked about the possibility of organ donation. While this can be difficult for family members, it is done with the best intentions. Many families who have donated organs have said that while the decision is painful, it gave them comfort to know that they helped someone.
Q. Will my organs ever be sold?
A. No. It is illegal to buy or sell organs for transplantation.
Q. Where can I get more information about organ donation?
A. You may talk with your doctor; with chaplains, nurses or Social Services staff at Baptist Louisville; or you can call Kentucky Organ Donor Affiliates at (800) 525-3456.