Kentucky Health Care Surrogate Designation

What a Health Care Surrogate Does in Kentucky

A health care surrogate is the person authorized to make medical decisions for your parent when they can no longer make those decisions themselves. In Kentucky, this role is established under KRS 311.621–311.643, and it carries specific legal weight that's distinct from a living will or a durable power of attorney.

The surrogate steps in when the attending physician determines that a patient lacks decisional capacity. At that point, the surrogate can consent to or refuse treatment, approve or decline surgical procedures, and make health care decisions consistent with the patient's known wishes and applicable law.

How to Designate a Surrogate

Kentucky allows two paths to establishing a health care surrogate:

Advance designation (the recommended path): Your parent completes a written Health Care Surrogate Designation form while they still have capacity. The form must be dated and signed by the adult making the designation, then either witnessed by at least two people who are present with the signer and with each other or acknowledged before a notary public or other person authorized to administer oaths. A blood relative, beneficiary, facility employee (unless acting as the notary), attending physician, or person directly financially responsible for the signer cannot serve as a witness or as the notary or other authorized person. The Kentucky Department for Aging and Independent Living publishes a standard Living Will Packet through CHFS that includes both the Living Will Directive and the Health Care Surrogate Designation form.

Default surrogate (when no written designation exists): If your parent becomes incapacitated without having designated a surrogate, Kentucky law establishes a priority list for the responsible party who may act when no individual in a prior class is reasonably available, willing, and competent:

1. Court-appointed guardian, if one exists
2. Attorney-in-fact with specific health care authority
3. Spouse
4. Adult child (or majority of reasonably available adult children)
5. Parent
6. Nearest living relative (or majority of reasonably available relatives in the same class)
7. Adult friend with regular contact and familiarity with the patient's activities, health, and religious or moral beliefs

The default hierarchy works, but it creates friction. If siblings disagree about a treatment decision, and no written designation names one child as the surrogate, the hospital may require a majority consensus among all adult children — or the family may need to seek a court-appointed guardian to break the deadlock.

How It Differs from a Living Will and a POA

These three documents get confused constantly, but they serve different functions:

Living Will Directive (KRS 311.623 and 311.625): A written statement of your parent's wishes about life-sustaining treatment in the event of a terminal condition or permanent unconscious state. It speaks for the patient but doesn't designate a decision-maker. It's narrow — it only applies to end-of-life scenarios.

Health Care Surrogate Designation (KRS 311.621): Names a specific person to make health care decisions within the authority provided by Kentucky law when the patient loses capacity — not just end-of-life decisions. The surrogate can approve a surgery, choose between treatment options, select or change physicians, and make day-to-day medical choices, subject to the patient's directive and applicable law.

Durable Power of Attorney for Health Care: A broader legal instrument created under the Kentucky Uniform Power of Attorney Act (KRS Chapter 457). A healthcare POA can include the same surrogate decision-making authority, but it can also cover other matters depending on how it's drafted. Under KRS 457.050, it is signed by the principal (or by another person at the principal's direction and in the principal's conscious presence); if the principal acknowledges the signature before a notary public or other authorized individual, the signature is presumed genuine. The statute does not impose the two-witness requirement used for the advance directive above.

For most families, the strongest protection is executing both a Living Will Directive and a Health Care Surrogate Designation — and, ideally, a Durable Power of Attorney that covers financial matters as well.

When It Matters Most

The surrogate designation becomes critical in three scenarios:

Hospital discharge pressure. When a parent is hospitalized and the medical team determines they can't return home safely, someone needs authority to consent to a transfer to a skilled nursing facility or rehabilitation center. Without a designated surrogate, the hospital works through the default hierarchy — which can delay placement and leave the family scrambling.

Dementia progression. A parent with advancing Alzheimer's or other dementia will eventually lose the capacity to make their own medical decisions. The surrogate acts when the attending physician determines that the parent lacks decisional capacity, ensuring continuity of care without a gap.

Surgical consent. If a parent in a care facility needs a procedure — hip replacement after a fall, cataract surgery, cardiac catheterization — the facility and surgeon need consent from someone with legal authority. The surrogate can provide it immediately.

Get It Done Before the Crisis

The single biggest mistake families make is waiting until a parent is already in the hospital to sort out legal authority. At that point, the parent may lack the capacity to sign a designation, and the family is left petitioning the court for guardianship — a process that in Kentucky involves an Interdisciplinary Team evaluation, a jury trial (under KRS 387.570), and weeks of delay.

Our Kentucky Care Decision Guide includes the complete legal authority framework for families — surrogate designation, powers of attorney, guardianship procedures, and the court forms you'll need if capacity has already been lost.

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