Living Wills and Health Care Surrogate

A living will is your written expression of how your treatment wishes in certain medical circumstances. In Kentucky, this document allows you to express whether you wish to be given life-sustaining treatments in the event you are terminally ill or injured, to decide in advance whether you wish to be provided food and water via intravenous devices (“tube feeding”), and to give other medical directions that impact your care, including the end of life. “Life-sustaining treatment” means the use of available medical machinery and techniques, such as heart-lung machines, ventilators, and other medical equipment and techniques that may sustain and possibly extend your life, but which may not by themselves cure your condition.

A health care surrogate is the person you name as representative for healthcare decisions in the unfortunate event that you no longer are able to communicate those desires yourself.  Generally, in your living will you will name a health care surrogate but this is not always the case.

Living Wills and Healthcare surrogates is one area of Estate Planning where we strongly believe in check the box forms.  Kentucky law has specific language that can be cut and pasted into a form that everyone hospital in Kentucky will recognize.  While it is certainly legal to vary the language and customize your living will, it may confuse healthcare providers and strikes us as unnecessary and unwise.

So, do you need an attorney to prepare a Living Will and Health Care Directive?  The short answer is no, but it saves time and possibly some confusion to have an attorney.  The Kentucky Attorney General’s office has put together a great packet that works just fine if you carefully read all the materials.  Two things to beware of if you complete the Living Will without an attorney.  First, the Kentucky form language is somewhat confusing. We have seen many forms that our clients bring in where they have selected contradicatory options.  Second, we have seen many self-prepared living wills where the spouse or children have witnessed the Living Will and are also named as the health care surrogate.  This is a problem under Kentucky law.

We include Living Wills in our estate planning packages.  At your will signing we will walk you through the Living Will form step-by-step and make sure that it reflects your desires and is properly executed.



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