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April 20, 2014

Living Wills in Kentucky: The Basics

Terri Schiavo. Everyone knows the name and most remember the sad circumstances surrounding her death. Terri's parents and her husband fought passionately over whether Terri, who suffered brain damage and was in a persistent vegetative state, should live by artificial means or die naturally. The feud played out in the national news and in court until Terri's husband won the right to have Terri's feeding tube withdrawn. Terri died thirteen days after its removal.

If there can be a silver lining to such a dark tragedy, it is the attention that Terri's death brought to living wills. A living will enables individuals to choose what medical care they will receive in the event they become unconscious or unable to communicate. Each state has its own laws and procedures for creating a living will, as it is a legal document. If you are a resident of Kentucky and are interested in creating your living will, here is what you should know:

A living will's effectiveness

Living wills are relied upon if you are unable to communicate your decisions regarding medical care. You may accept or refuse medical treatment if you are able to communicate the decision, regardless of what is stated in the living will.

You must be eighteen years of age and of sound mind to create a living will. In the event an individual is pregnant at the time of incapacitation, the directives included in the living will are not enforceable.

The instructions

KRS 311.625 specifies the living will form that individuals should use when making their decisions. The form can be accessed here. Individuals have the option to fill out all or part of the form, depending on their wishes. An individual may also add parts to the form or create their own living will, but it is advisable to contact an attorney before doing this.

It is very important to note that law requires a living will to be signed in the presence of two adults or, in the alternative, in the presence of a Notary Public. There is a very specific list of people who cannot serve as a witness or notary public, including:

- A blood relative of the signor

- A guardian

- A person who will inherit property from the signor

- An employee of a health care facility in which the signor is a patient (unless the employee serves as a notary public)

- The attending physician of the signor

- Anyone directly responsible for the costs of the signor's health care

These are the basics of a living will, but there are specific directives that should be understood before completing the form. These will be discussed next week, so be sure to check back for more information.

Amanda Stubblefield and Matthew Finley, law clerks at McBrayer, also contributed to this article.

© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.

About the Author

Terri R. Stallard, McBrayer Law Firm, Estate Planning Attorney
Member

Terri R. Stallard is a Member of McBrayer, McGinnis, Leslie & Kirkland, PLLC and practices from the Lexington and Louisville offices. Ms. Stallard concentrates her practice in the areas of estate planning, trust and estate administration, and charitable planning. She is licensed to practice law in Kentucky, Georgia, and Tennessee, and in the U.S. Tax Court. She received her B.A. from Transylvania University, her J.D. from the University of Louisville Louis D. Brandeis School of Law, and attended the LLM program in Taxation at Emory University School of Law.

Ms. Stallard has...

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