Healthcare Documents for Estate Planning

One of the goals of estate planning is to protect your healthcare and end-of-life decisions.

To that end, several documents are used.

Right to Control Own Healthcare

People are sometimes concerned that estate planning means they cannot make their own medical decisions.

This concern is unfounded because estate planning about medical decisions is only relevant if the person lacks capacity.

Put another way, estate planning protects an individual’s legal right to self-determination by permitting the individual to make choices in advance that will be binding if a time comes when they are unable to express their wishes.

Otherwise, a person remains free to change their mind if they so wish.

Legal Right to Self-Determination

Estate planning presupposes the legal right to self-determination. Specifically, competent adults can make their own medical decisions.

To do so, a person must be able to give informed consent.

To give informed consent, a person must understand what medical professionals tell them, what is expected of medical treatments, and to convey the choice they make.

Exceptions

There are a few legal exceptions to the right to self-determination. These include:

If an individual has a serious medical condition and needs emergency care or when incapacity leads to the inability to give informed consent.

When the state has a compelling interest. Courts have found very few compelling interests, including preventing suicide and protecting the integrity of the medical profession.

A person does not have a legal right to assisted suicide. This needs to be distinguished from refusing medical treatment.

See this chart for a breakdown by state. Choosing not to be kept alive artificially is not suicide under Kentucky law. KRS 311.637.

Maintaining Autonomy

By designating a surrogate you are not giving up your own volition to make medical decisions. Rather, you are assuring that those decisions are made by a person you choose (and with respect to your terms) in the event you lack the capacity to decide.

Kentucky Living Will

A living will permits you to make various end-of-life decisions in advance. The Kentucky Attorney General provides a living will packet.

At times, the term ‘advance directive’ is used for the living will as well as for other health care documents.

In some states, including Kentucky, a living will must be in substantial compliance with the statutory form. Thus, any contemplated changes should be carefully considered in consultation with an attorney.

A living will addresses life-prolonging treatment, nutrition & hydration, and organ donation. Information on organ donation can be found at Donate Life Ky.

The living will can also designate a health care surrogate, which is a person who can make medical decisions on your behalf. The designation can also be made with a health care power of attorney (“HCPOA“).

Kentucky Healthcare Power of Attorney

As the living will must substantially comply with the statutory form and only addresses end-of-life decisions, a surrogate should be designated with an HCPOA.

Otherwise, there will be a gap in decision-making authority.

You should name successor surrogates. Further, if you name joint surrogates then they will need to act unanimously unless you so state otherwise.

An HCPOA should address a wide range of non-terminal situations.

First, the HCPOA should address in-home care.

Additionally, matters pertaining to other care, such as assisted living and nursing home care should be addressed. An intention to remain at home can be stated.

Last, all possible therapies should be addressed. This includes treatments & surgeries, medication, and psychiatric treatment.

In some states, some of these issues may need to be handled in a separate form.

Other Healthcare Documents

In addition to the living will and the healthcare power of attorney, there are other important documents.

With respect to emergency medical services, neither a living will nor an HCPOA will be sufficient. This is because EMS workers require either a special Do Not Resuscitate (DNR) Order or a Medical Order For Scope of Treatment (MOST) to mitigate their duty to save a life.

The DNR is to be filled out in advance.

In contrast, a MOST is completed with the assistance of a doctor if you either have an advanced chronic progressive illness or if your life expectancy is less than one year.

With the MOST form, you can express preferences for levels of treatment and also express what is not desired. More can be learned about the MOST from the Board Opinion.

Some states have a document similar to a MOST, called a Physician Orders for Life-Sustaining Treatment (POLST).

Finally, under Kentucky law, funeral and related decisions cannot be made in a will or POA documents. A sample separate form is available from the Kentucky Board of Embalmers and Funeral Directors.

The forms from other states can differ substantially.