HEALTH CARE POWER OF ATTORNEY

and Advance Directive for Health Care Decisions

(Commonwealth of Kentucky)

[// GUIDANCE: This template is intended to satisfy the requirements of Ky. Rev. Stat. Ann. §§ 311.621 – 311.647 (the “Kentucky Living Will Directive Act”) and federal HIPAA regulations (45 C.F.R. § 164.508). Customize all bracketed items and confirm compliance with current law before execution.]

TABLE OF CONTENTS

I. Document Header
II. Definitions
III. Operative Provisions
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block

I. DOCUMENT HEADER

1. Title. Health Care Power of Attorney and Advance Directive (the “Agreement”).
2. Parties.
   a. “Principal”: [PRINCIPAL LEGAL NAME], of [ADDRESS].
   b. “Agent”: [PRIMARY AGENT LEGAL NAME], of [ADDRESS].
   c. “Alternate Agent(s)” (if any): [ALTERNATE AGENT NAME(S) AND ADDRESS(ES)].
3. Effective Date. This Agreement is effective on the later of (i) the date signed by the Principal, or (ii) the date acknowledged before a notary public or witnessed as required by Section X.
4. Governing Law & Jurisdiction. Kentucky substantive health-care law governs (§ VIII.1), and exclusive forum is the state probate court of the county where the Principal resides (§ VIII.2).
5. Consideration. The mutual promises herein constitute adequate legal consideration.

II. DEFINITIONS

“Advance Directive” – This written instrument authorizing health-care decisions consistent with Ky. Rev. Stat. Ann. §§ 311.621–.647.

“Agent” – The individual(s) designated in § III.1 to make Health-Care Decisions on the Principal’s behalf.

“Artificial Nutrition or Hydration” – Medically or technologically supplied nourishment or fluids.

“Certified Health-Care Professional” – A physician, APRN, or other clinician licensed in Kentucky qualified to render determinations of incapacity.

“End-of-Life Decision” – Any decision relating to life-prolonging treatment, Artificial Nutrition or Hydration, or resuscitative measures when the Principal is terminally ill or permanently unconscious.

“Good Faith” – Honesty in fact in the conduct or transaction concerned.

“Health-Care Decision” – Any consent, refusal, or withdrawal of consent to health-care, including admission to facilities, service selection, and release of protected health information.

“HIPAA” – The Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, and implementing regulations, 45 C.F.R. Parts 160 & 164.

“Incapacity Certification” – A written statement by two (2) Certified Health-Care Professionals that the Principal lacks decisional capacity.

“Living Will” – A written statement of the Principal’s wishes concerning End-of-Life Decisions, incorporated herein (§ III.4).

“Principal” – The person executing this Agreement.

“Protected Health Information” or “PHI” – As defined in 45 C.F.R. § 160.103.

III. OPERATIVE PROVISIONS

1. Appointment of Agent.
   a. The Principal hereby appoints the Agent, and any Alternate Agent successively, as the Principal’s lawful attorney-in-fact for all Health-Care Decisions.
   b. The authority granted is durable and shall not be affected by the Principal’s subsequent incapacity or disability.

2. Grant of Authority. Subject to § III.3 and § III.4, the Agent may:
   i. Give, refuse, or withdraw consent to any care, service, or procedure;
   ii. Authorize admission to or discharge from health-care facilities;
   iii. Access, review, and consent to disclosure of PHI;
   iv. Employ and discharge medical personnel;
   v. Execute documents required to effectuate any Health-Care Decision;
   vi. Take any legal action necessary to carry out the Principal’s wishes.

3. Limitations on Authority.
   a. The Agent may not:

4. Authorize psychosurgery, electro-convulsive therapy, or experimental procedures unless expressly permitted here: [INSERT IF PERMITTED / “None”].

5. Make any decision expressly forbidden by the Principal in a separate writing delivered to the Agent.
   b. Financial decisions are expressly excluded from the Agent’s authority.

6. End-of-Life Provisions (Living Will).
   [PRINCIPAL INITIAL each applicable line]
   ___ (a) If I am permanently unconscious, I direct that life-prolonging treatment be:
   ___ continued ___ withheld/withdrawn.
   ___ (b) If I am terminally ill and death is imminent, I direct that life-prolonging treatment be:
   ___ continued ___ withheld/withdrawn.
   ___ (c) Artificial Nutrition or Hydration:
   ___ provide ___ withhold if burdens outweigh benefits.
   ___ (d) Cardiopulmonary resuscitation (CPR):
   ___ attempt CPR ___ do NOT attempt CPR (DNR).

[// GUIDANCE: Custom end-of-life instructions may be added here.]

5. HIPAA Authorization. Pursuant to 45 C.F.R. § 164.508, the Principal authorizes any health-care provider to disclose the Principal’s PHI to the Agent to the same extent as the Principal could. This authorization is effective immediately, survives incapacity, and expires five (5) years after the Principal’s death unless sooner revoked.

6. Determination of Incapacity. The Agent’s authority becomes effective upon the earlier of:
   a. Written Incapacity Certification, or
   b. The Principal’s voluntary delegation in writing.

7. Nomination of Guardian and Conservator. If a court determines that a guardian or conservator is necessary, the Principal nominates the Agent to serve in that capacity with preference over all other persons.

8. Reliance by Third Parties. Any person may rely conclusively on the authority of the Agent under a photocopy or electronically transmitted copy of this Agreement.

IV. REPRESENTATIONS & WARRANTIES

1. Principal’s Capacity. The Principal represents that (i) the Principal is at least eighteen (18) years old, (ii) of sound mind, and (iii) executing this Agreement voluntarily.

2. Agent’s Acceptance. The Agent represents willingness and ability to serve and act in Good Faith consistent with the Principal’s known wishes.

3. No Conflicting Directives. The Principal warrants that no prior advance directive or health-care power of attorney remains in effect, except: [INSERT / “None”].

4. Survival. All representations and warranties survive revocation of the Agent’s authority to the extent necessary to enforce indemnification obligations.

V. COVENANTS & RESTRICTIONS

1. Agent’s Duties. The Agent shall:
   a. Act in Good Faith and in the Principal’s best interest;
   b. Consult with health-care providers and, when feasible, with family;
   c. Maintain contemporaneous records of significant Health-Care Decisions;
   d. Provide such records to the Principal, court, or successor Agent upon reasonable request.

2. Principal’s Covenants. The Principal shall notify the Agent of any change in wishes and deliver copies of this Agreement to treating providers.

3. Notice & Cure. An Agent alleged to be acting outside authority shall receive written notice and a 48-hour opportunity to cure before removal (§ VI.2).

VI. DEFAULT & REMEDIES

1. Events of Default.
   a. Agent’s resignation or death;
   b. Judicial determination of Agent’s incapacity or misconduct;
   c. Revocation by the Principal executed with the same formalities as this Agreement.

2. Removal & Succession. Upon an Event of Default, authority passes to the next willing Alternate Agent, or if none, to a court-appointed guardian.

3. Injunctive Relief. Any interested person may petition the state probate court for injunctive relief to enforce or restrain actions inconsistent with this Agreement (§ VIII.4).

4. Attorneys’ Fees. The prevailing party in any enforcement action shall recover reasonable attorneys’ fees and costs.

VII. RISK ALLOCATION

1. Indemnification. The Principal shall indemnify and hold the Agent harmless from any loss, liability, or expense arising from Good-Faith acts or omissions under this Agreement.

2. Limitation of Liability. The Agent shall not be liable to the Principal or any third party for actions taken in Good Faith; liability is limited to acts of willful misconduct, gross negligence, or bad faith.

3. Insurance. The Principal authorizes procurement, at the estate’s expense, of liability insurance covering the Agent’s authorized activities.

4. Force Majeure. The Agent is excused from performance when prevented by events beyond reasonable control, including natural disasters, war, or epidemic.

VIII. DISPUTE RESOLUTION

1. Governing Law. This Agreement is governed by Kentucky substantive law, including but not limited to the Kentucky Living Will Directive Act, without regard to conflicts-of-law principles.

2. Forum Selection. Exclusive jurisdiction lies in the probate division of the [COUNTY] Circuit Court, Commonwealth of Kentucky.

3. Arbitration. The parties intentionally omit arbitration; disputes shall be resolved in court.

4. Jury Waiver. No jury waiver is provided; statutory rights are preserved.

5. Injunctive Relief. Nothing herein limits any party’s right to seek emergency injunctive or declaratory relief to effectuate the Principal’s Health-Care Decisions.

IX. GENERAL PROVISIONS

1. Amendment & Waiver. This Agreement may be amended or revoked only in a writing signed by the Principal and witnessed or notarized with the formalities of Section X. No waiver is effective unless in writing.

2. Assignment. Authority granted herein is personal to the Agent and may not be assigned or delegated, except to the Alternate Agent(s) pursuant to § VI.2.

3. Successors & Assigns. This Agreement binds the Principal’s heirs, executors, administrators, and permitted assigns.

4. Severability. If any provision is held unenforceable, the remaining provisions shall remain in full force, and a court may reform the unenforceable provision to the minimum extent necessary.

5. Integration. This document constitutes the entire agreement regarding Health-Care Decisions and supersedes all prior inconsistent directives.

6. Counterparts; Electronic Signature. This Agreement may be executed in counterparts and delivered by facsimile, PDF, or compliant electronic signature, each of which is deemed an original.

X. EXECUTION BLOCK

A. PRINCIPAL

I, [PRINCIPAL LEGAL NAME], sign my name to this Health Care Power of Attorney on this ___ day of _, 20, at [CITY], Kentucky.

Signature of Principal

Printed Name

B. STATEMENT OF WITNESSES or NOTARIAL ACKNOWLEDGMENT

(Choose ONE of the two options below – strike the unused option.)

OPTION 1 – TWO (2) WITNESSES
We declare that the Principal appears to be of sound mind and under no duress, fraud, or undue influence, and that we are not (i) related by blood, marriage, or adoption; (ii) entitled to any portion of the Principal’s estate; (iii) directly financially responsible for the Principal’s health care; or (iv) the Agent.

Witness 1: ____ Date: _
Address: _________

Witness 2: ____ Date: _
Address: _________

OPTION 2 – NOTARIZATION
State of Kentucky )
County of _____ ) ss.

Subscribed, sworn to, and acknowledged before me by [PRINCIPAL NAME] this ___ day of _, 20.

Notary Public
My commission expires: ____

C. AGENT’S ACCEPTANCE

I, [AGENT NAME], have read this Agreement and accept the appointment as Agent. I understand the responsibilities imposed and agree to act in accordance with the Principal’s wishes and Kentucky law.

______ Date: _
Signature of Agent

Printed Name

(Repeat acceptance block for each Alternate Agent.)

[// GUIDANCE:
1. Provide copies of the fully executed document to the Agent, Alternate Agent(s), primary physician, and any facility where the Principal receives care.
2. Consider registering the directive with the Kentucky Living Will Registry for additional accessibility.
3. Review the document periodically, especially after major life events or changes in health status.
]