Request By:
Mary Whittle, Director
Legal Records Division
Office of the Jefferson County Clerk
527 West Jefferson Street
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerald R. Gerhard, Assistant Attorney General (502) 564-7600
Your letter of September 10, 1990, to Attorney General Cowan, concerning the above referenced matter, was referred to me for review and response.
You ask, in substance, whether "Living Wills," provided for under the Kentucky Living Will Act, may be recorded in the County Clerk's Office and, if so, what the proper procedure and fee for such recording is.
For reasons discussed below, we believe a "Living Will" (KRS 311.626) may not be placed with a County Clerk for filing, recordation, or safekeeping.
The "Living Will" was provided for by what is known as the Kentucky Living Will Act, House Bill 113, 1990 Regular Session of the Kentucky General Assembly. In the Acts for the 1990 Regular Session, the bill is set forth at Chapter 122. The Kentucky Living Will Act is now codified at Kentucky Revised Statutes KRS 311.622 to KRS 311.644.
No express provision is made in the Act for filing, recording, or depositing for safekeeping, a Living Will with either the County or District Court Clerk. There is, for example, no provision in the Kentucky Living Will Act similar to that found at KRS 394.300, governing recording of a "regular" will admitted to record by a court. Additionally, there is no provision in the Kentucky Living Will Act, similar to that found at KRS 394.110, providing that a will within the meaning of Chapter 394 may be deposited with the county clerk for safekeeping, upon payment of a fee as provided in KRS 64.012. Nor is there language in the Act, comparable to that in KRS 382.370, providing for lodging or recording a power of attorney for conveyance or release of real or personal property.
Substantial policy concerns are associated with the question of whether a Living Will may be filed with the County Clerk. If Living Wills are recorded, filed or lodged with the County Clerk, will such instruments be immediately available to a treating physician or hospital in a time of emergency? Clerk's offices are closed at night and during much of a weekend - filing Living Wills in such offices may actually defeat the very purpose of the instrument. Will Clerk's offices become an office that must be checked before treatment is rendered to determine if a given individual has a Living Will on file? If recording, filing, or lodging with the Clerk is optional, will additional problems arise in determining whether a Living Will exists, and whether it is "current"?
The concerns listed above are legislative in character. As pointed out, there is no express provision within the Living Will Act providing for recordation, filing, or lodging with the County Clerk for safekeeping, a Living Will. In view of the substantial policy concerns involved, and in view of the absence of express legislative direction that such instruments may be recorded, filed, or lodged with the County Clerk, in our view such cannot be done.