The following answers are based upon Kentucky law as of April, 2006. The laws in other states my be different. Laws are subject to change, so please ask your attorney for answers to specific questions.
1. After a patient is connected to life support systems, it is legally difficult to withdraw him or her from the life support systems.
- Kentucky Answer: False.
- The law provides several ways to withdraw a patient from life support systems without legal difficulty. While the patient is still able to make and communicate a health care decision, the patient may designate one or more health care surrogates to make health care decisions on the patient’s behalf in the event the patient should lose that ability. If more than one surrogate has been designated, health care decisions must be made unanimously unless the patient has indicated otherwise. The competent patient may also have provided for an advance directive or “living will” which indicates his/her wishes regarding care in the event of terminal and incurable illness. The health care surrogate(s) must make health care decisions for the patient according to the patient’s wishes as expressed in the advance directive.
2. Without a living will, the doctors and hospital must put and keep a terminally and incurably ill patient on life support systems, regardless of the cost.
- Kentucky Answer: False.
- If the patient is able to decide, he/she may refuse medical treatment. If the patient has made no living will and the patient’s physician has determined that the patient is no longer able to make or communicate health care decisions, the following persons are authorized to make those decisions on behalf of the patient, including the decision to withhold or withdraw life support systems, in the following order: a court-appointed guardian; an attorney-in-fact (if the durable power of attorney specifically includes authority for health care decisions); the spouse; an adult child (or, if there are more than one, a majority of those reasonably available for consultation); the parents; and the nearest living relative (or, if there is more than one of the same relation reasonably available, a majority of them).
3. Emergency Medical Services (EMS) must be given a copy of your living will if they are called to resuscitate you.
- Kentucky Answer: False.
- EMS will try to resuscitate a patient, regardless of the existence of an advance directive or living will, unless a physician has given a “do not resuscitate” (DNR) order on a standard form.
4. If you have a living will, you should also have a Do Not Resuscitate (DNR) order.
- Kentucky Answer: False.
- This does not follow. A DNR order is typically issued by a doctor for patients who are dying or who are in a persistent vegetative state. It would generally not be appropriate in the case of a person needing treatment in an emergency—a heart attack victim, for example.
5. You revoke your living will by tearing it up.
- Kentucky Answer: True.
- You can revoke your living will by stating as much in writing, signed and dated; by stating it orally (assuming you are still able to make and communicate health care decisions) in the presence of two witnesses, one of them a health care provider; or by destroying the document or having it destroyed in your presence. However, you must notify your attending physician or health care facility of the revocation as they will continue to act in accordance with your living will until they receive notice that it has been revoked.
6. Your health care agent has the right to make all health care decisions on your behalf under a Health Care Power of Attorney and can make decisions over your objections.
- Kentucky Answer: False.
- Your health care surrogate may make decisions for you only when you are no longer able to do so.
7. More often than not, it is one or more family members who prevent a patient’s living will from being honored by the doctor and medical provider.
- Kentucky Answer: True.
- The family, physician, and health care facility are generally obliged by law to honor a living will. However, if the family is at odds, the doctor may be inclined to continue life support until the family resolves its differences and agrees to discontinue it. This issue should be discussed with your family to ensure that your end-of-life choices are honored.
8. A living will from another state is not valid in this state.
- Kentucky Answer: False.
- A living will must meet certain requirements to be recognized under the Kentucky Living Will Directive Act. However, the law does not preclude persons from crafting advance directives outside the parameters of the Act. Nor does the law preclude physicians, nurses, or health care facilities from honoring such directives as long as they are consistent with accepted medical practice.
9. A hospital or nursing home can insist that someone being admitted must sign a living will.
- Kentucky Answer: False.
- While the facility will typically inquire about the existence of an advance directive, a patient being admitted to a hospital or nursing home cannot be required to sign a living will.
10. The law is more concerned about protecting doctors than it is about honoring a patient’s wishes.
- Kentucky Answer: False.
- While the law does provide protection from civil and criminal liability to the physician following the advance directive of the patient or patient’s representative, the law is designed to insure that, when the patient is no longer able to make and communicate health care decisions, the patient’s wishes are honored. The law also provides that the patient’s physician—and, in the case of a terminal condition, another physician as well—must determine that the patient is so debilitated as to be unable to decide for himself or herself.
11. The Power of Attorney for health care must always be a family member if one is available.
- Kentucky Answer: False.
- Any adult may serve, except a person associated with the health care facility where the patient is a resident, unless that person is a close relative.
12. The Power of Attorney for health care may be shared by more than one family member.
- Kentucky Answer: True.
- A person may designate more than one health care surrogate. Unless stated otherwise in the living will, their decisions must be unanimous. A surrogate may resign by giving written notice to the person who appointed him/her, to the successor surrogate, if any, to the attending physician, and to any health care facility waiting for the surrogate to make a decision.
13. An attorney must be used to draw up a legal living will.
- Kentucky Answer: False.
- The law provides a fill-in-the-blank form. No attorney is needed to draft the document. It must be signed and dated by the person making it, or at that person’s direction, either in the presence of two adult witnesses or in the presence of a notary public. The following persons may not serve as witness or notary: a blood relative of the person making the living will; a beneficiary of the person under the Commonwealth’s descent and distribution statutes; an employee of a health care facility in which the person making the living will is a patient, unless the employee serves as a notary public; the attending physician; or anyone paying for the health care of the person making the living will.
- Return to the Quiz for Health Care Advance Directives
- See our Advance Directives Case Studies for more information about Health Care Advance Directives, including specific details for residents of Idaho, Iowa, Kentucky, North Dakota, and South Dakota.
Credits
Adapted for use in the Legally Secure Your Financial Future: Organize, Communicate, Prepare program.
Content Development
Reviewed for use in Kentucky by:
Matthew Holland, law student,
Louis D. Brandeis School of Law, Samuel L. Greenbaum Public Service Program
University of Louisville, Louisville, Kentucky.
Supervised by:
Ron Marstin, Urban Managing Attorney,
Legal Aid Society, Louisville, Kentucky.
This information is provided as a public service and is designed to acquaint you with certain legal issues and concerns. It is not intended to be a substitute for legal advice, nor does it tell you everything you may need to know about this subject. Future changes in the law cannot be predicted, and statements in these materials are based solely on the laws in force on the date of release noted on this page.
This document is for non-profit educational purposes only. This document may not be used by a profit-making company or organization. When used by a non-profit organization, appropriate credit must be given to the Cooperative Extension Legally Secure Your Financial Future: Organize, Communicate, Prepare education program. Materials for this program were developed by a team from six land-grant universities. The program is included in the program toolkit of the Cooperative Extension Financial Security in Later Life national initiative. For more information go to: http://www.csrees.usda.gov/fsll.