Finance
Instrument: Power of attorney (POA)
What is it for?
The POA allows an adult (the “principal”) to authorize one or more “agents” to make financial decisions on the principal’s behalf. Generally, the POA does not cover health care decisions. Ky. Rev. Stat. Ann. § 457.030.
What does it do?
Unless stated otherwise in the POA, agents are generally presumed authorized to take certain types of actions, such as contracting or suing on the principal’s behalf or accessing communications intended for the principal. Ky. Rev. Stat. Ann. § 457.265. Some decisions may require a specific grant in the POA. Ky. Rev. Stat. Ann. § 457.245.
In exercising the authority granted by the principal, an agent also must act loyally, avoid conflicts of interest, and act with care, competence, and diligence consistent with a fiduciary duty. An agent is not liable if the principal’s property declines as a result of the agent’s actions absent a breach of this duty. Ky. Rev. Stat. Ann. § 457.140.
Third parties are generally obligated to accept decisions by an agent pursuant to a POA, unless they have a good faith reason for refusing to do so, such as actual knowledge that another person has reported to adult protective services that the agent may be abusing, neglecting, or exploiting the principal. A third party may, for example, request the agent to provide a certification, and Kentucky law provides a form for this purpose. Ky. Rev. Stat. Ann. § 457.430. A third party may not require a principal’s POA to be created using a specific form, so long as the POA substantially conforms to the statutory form located at Ky. Rev. Stat. Ann. § 457.420. However, a third party may request a written certification from the agent of the POA’s validity. Ky. Rev. Stat. Ann. § 457.200. Third parties who rely in good faith on a POA to accept the decisions of an agent are not subject to liability. Ky. Rev. Stat. Ann. § 457.190.
How does one make it?
A POA must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name. If signed by another individual, the reason for this method of signing must be stated in the POA. The signature must also be notarized. Ky. Rev. Stat. Ann. § 457.050
When does it come into effect?
A POA is effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency. If a POA becomes effective upon the principal’s incapacity, the principal may authorized a specific person to determine whether the principal is incapacitated. If not, then the POA becomes effective upon a written determination of incapacity by a physician, an advanced practice registered nurse, a licensed psychologist, or a person licensed or certified as a social worker or an employee of the Cabinet for Health and Family Services. Ky. Rev. Stat. Ann. § 457.090.
For the purposes of an incapacity determination, “incapacity” is defined as the inability of an individual to manage property or business affairs because the individual: has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Ky. Rev. Stat. Ann. §457.020(5). Note that a POA is presumed to be “durable” (i.e. presumed to survive the principal’s incapacity) unless it expressly provides that it is terminated by the incapacity of the principal. Ky. Rev. Stat. Ann. § 457.040.
How long does it last?
The POA for financial matters generally lasts until either the principal revokes it; the principal dies; the agent dies or becomes incapacitated or resigns; or upon the POA’s termination date, if one is provided. Ky. Rev. Stat. Ann. § 457.100. Note that the execution of a subsequent POA does not automatically revoke any prior POA unless the subsequent POA expressly states that the prior POA(s) is/are revoked.
How does one end it?
Kentucky does not specify the means by which the principal may revoke a POA.
What does an example look like?
Kentucky has a statutory POA form. Ky. Rev. Stat. Ann. § 457.420. A copy is available here. A sample agent’s certification form (for affirming the agent’s authority) is available here.
What else should one know?
Kentucky’s POA is based on the Uniform Power of Attorney Act, with certain exceptions.
Last updated April 2021
Education
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Health
Instrument: Living will directive
What is it for?
An adult with decisional capacity (the “grantor”) may make a written living will directive, a type of advance directive, that designates one or more adults as a “surrogate” or successor surrogate to make health care decisions on behalf of the grantor. “Surrogate” means an adult who has been designated to make health care decisions.
What does it do?
A health care surrogate designated through a living will directive may make health care decisions for the grantor which the grantor could make individually if he or she had decisional capacity. Surrogate decisions must be made in accordance with the desires of the grantor as indicated in the directive. The surrogate must also consider the recommendation of the attending physician and honor the decision made by the grantor as expressed in the directive. The surrogate may not make a health care decision in any situation in which the grantor’s attending physician has determined in good faith that the grantor has decisional capacity. In certain circumstances, the surrogate may authorize the withdrawal or withholding of artificially-provided nutrition and hydration. Ky. Rev. Stat. Ann. § 311.629.
Although health care providers may rely on a surrogate’s decision without liability, they may also refuse to comply without liability, in which case the patient has a right to be transferred to another provider who will do so. Ky. Rev. Stat. Ann. § 311.633.
How does one make it?
An advance directive must be in writing, dated, and signed by the grantor, or at the grantor’s direction, and either witnessed by two or more adults in the presence of the grantor and in the presence of each other, or acknowledged before a notary public or other person authorized to administer oaths. Neither witness may be related to the grantor by blood, marriage or adoption, or have a financial conflict of interest. The living will directive designating a health care surrogate must substantially conform with the form provided at Ky. Rev. Stat. Ann. § 311.625.
When does it come into effect?
Presumably, when an attending physician believes that the grantor lacks decisional capacity. Ky. Rev. Stat. Ann. § 311.629. “Decisional capacity” is defined as the ability to make and communicate a health care decision.
How long does it last?
Presumably, until the grantor dies or revokes the directive.
How does one end it?
The grantor may revoke the living will directive either in a signed and dated writing declaring an intention to revoke; through an oral statement of intent to revoke made by a grantor with decisional capacity in the presence of two adults, one of whom must be a health care provider; or by either the grantor or someone in the grantor’s presence and at the grantor’s direction destroying the document. Ky. Rev. Stat. Ann. § 311.627.
Also, a surrogate may resign at any time by giving written notice to the grantor; to the immediate successor surrogate, if any; to the attending physician; and to any health care facility which is then waiting for the surrogate to make a health care decision.
What does an example look like?
Kentucky has a statutory living will directive form. Ky. Rev. Stat. Ann. § 311.625.
What else should one know?
The grantor is responsible for notifying the attending physician and health care facility where the grantor is a patient that an advance directive or a medical order for scope of treatment has been made. Ky. Rev. Stat. Ann. § 311.633.
Last updated April 2021
General
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