Kentucky Q and A

Ten commonly asked questions about PAD’s for Kentucky

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice. These answers are accurate as of September 2019.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes.  You may use the part of the Kentucky statutes entitled Advance Directives for Mental Health Treatment* to write instructions about how you would like your psychiatric treatment to proceed in the event that you are incompetent to make decisions yourself.  You may also, if you wish, appoint an agent (called a “Surrogate” in Kentucky) to make decisions for you in accordance with your instructions.  The Kentucky Protection and Advocacy has published a short guide for consumers.  The statute includes a sample form, which is not mandatory but is recommended because your document must be in “substantially” the same form as the sample in order to be valid.

*Note: Once you follow the link, you will need to scroll down to Section 202A.420-202A.991 to view the legislation. 

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

Yes.  The statute allows you to state preferences as regards psychotropic (psychiatric) drugs and electroconvulsive therapy (ECT). You may also state your preferred emergency interventions. You may provide as much background information as you wish. The exception to this is when you can lawfully be treated against your will under Kentucky’s involuntary treatment legislation.

3.  Does anyone have to approve my advance instructions at the time I make them?

No.  However, the document containing your advance instructions must be either notarized or signed by two competent adult witnesses.  The witnesses cannot be employees of your health care provider or any of their relatives.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?  

Yes.  The statute does not contain any restrictions on who can be your agent (“surrogate”), as long as that person agrees to act and signs your form or other document.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?

Your agent must exercise substituted judgment.  At all times, your agent must take into account the recommendations of your health care provider.  The statute states that your agent may override your instructions if, but only if, there is substantial medical evidence that following your instructions would cause you harm.  For more, see Chapter 202A.424.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

No.  You may do one, the other, or both.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.  There is no special procedure necessary for your PAD to go into effect.  In practice, all is required is that your mental health care providers feel that you are unable to make a decision or decisions yourself.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

The statute provides that your providers may decline to follow your instructions, or those of your agent, when they are outside professional standards for health care.  However, if you use your PAD to refuse treatment outright, your providers may override that refusal only when a court authorizes it, or in an emergency.

Any treatment which does not follow your PAD must be documented in your notes and your providers must immediately inform you or your agent, if you have one.

For more, see Chapter 202A.426.

10.  How long does my PAD remain valid?

Your PAD remains valid unless it is revoked by you.  You may revoke it at any time orally or in writing, or by destroying the document which created it.  For more, see Chapter 202A.428.