By Nathan Vinson, Attorney
English, Lucas, Priest and Owsley, LLP
Most people who have considered making an estate plan or who have already made such a plan, whether simple or complex in nature, are familiar with a living will directive. By Kentucky statute, a living will directive may designate a health care surrogate to make decisions for a person when that person is incapacitated or in a vegetative state. The Living Will Directive may state a person’s wishes regarding life-prolonging treatment, artificially provided nutrition, or donating all or part or all of a person’s body. Living will directives are very common in estate planning.
Most people also know what a do-not-resuscitate order is, but in Kentucky, putting one into legal and practical effect appears to be a little tricky. The only direct, standalone authority for mandatory recognition of a do-not-resuscitate order in Kentucky is a statute authorizing a Kentucky Emergency Medical Services Do Not Resuscitate Order. Therefore, an EMS DNR. The statute requires the EMS DNR to be embodied on a standard form approved by the Kentucky Board of Medical Licensure (click here for form). An EMS DNR, however, only applies to EMS personnel in a pre-hospital setting. From the living room floor to the doors of the hospital, the EMS DNR controls. Once you are in the hospital, assuming you made it that far, the EMS DNR has no effect or control.
So, if the Living Will Directive statute in Kentucky does not address do-not-resuscitate orders, will such an order be recognized by attending physicians if the order is included in the person’s living will? We’re not sure, and there is definitely no guidance (at least in Kentucky) for successfully drafting a living will to include an effective do-not-resuscitate order. So, if you are serious about having a do-not-resuscitate order in place (and some clients are), what do you do?
A little-known, relatively new medical order was created in Kentucky in 2015. It’s called a Medical Order for Scope of Treatment and is authorized by Kentucky statute. The MOST form’s contents are mandated by another Kentucky statute. The form, as is with the EMS DNR, must be approved by the Kentucky Board of Medical Licensure. The MOST law appears to be the only direct authority mandating recognition of a DNR order in hospital settings. The current such MOST form can be accessed here.
The MOST is comprised of sections A through E and covers your wishes regarding resuscitation, medical intervention (if you have a pulse or are breathing), administration of antibiotics, and medically administered fluids and nutrition. This last category may sound awfully similar to a living will directive, and you’d be right to think so. Therefore, Section E of the MOST asks if the patient has a living will, and if so, asks the patient to certify that the MOST, as completed, is consistent with the patient’s living will directive. To complete the MOST and for it to be effective, it must be completed in consultation with the patient’s physician and it must be reviewed and signed by the physician.
Practically, I’m not sure of the effectiveness of a MOST, as the original form must accompany the patient for the form to be recognized. If one fills out the form in advance and simply wants it on file, it appears that the do-not-resuscitate order could not be consulted in a timely fashion when it was most needed – during an emergency. Also, how are you to guess right on when and where you will need emergency treatment? Home? Vacation? Simply in a neighboring town? What about being taken to a local hospital other than the one where your MOST is on file?
I invite any comments medical and legal professionals may have on this new form, as well as those by the general public. If you need an estate or tax attorney, you can reach me at firstname.lastname@example.org or (270) 781-6500.