What Is a Medical Power of Attorney in West Virginia?
A medical power of attorney (sometimes called a healthcare power of attorney) is a legal document that lets you appoint a person, your health care representative, to make health care decisions for you if you become unable to make them yourself. You can also name a successor in case your first choice cannot serve.
Your representative can talk with your doctors, review your medical records and make decisions on your behalf, guided by what you would want. In West Virginia, these documents are governed by the West Virginia Health Care Decisions Act, Chapter 16, Article 30 of the West Virginia Code.
Medical Power of Attorney vs. Durable Power of Attorney
A medical power of attorney is different from a durable power of attorney for finances. A durable power of attorney covers money, property and accounts; the medical document covers your health care. Most people need both, and they should work together. You can learn more on our Powers of Attorney page.
What Is a West Virginia Living Will?
A living will is an advance directive that tells your doctors what kind of medical treatment you want, or do not want, if you are terminally ill or permanently unconscious and cannot make decisions for yourself. It often addresses life-prolonging interventions and other medical interventions near the end of life.
A living will speaks for you. A medical power of attorney names someone to speak for you. Each has a role.
Why Many People Want Both
West Virginia offers a combined medical power of attorney and living will, a single document that names your decision-maker and also records your wishes about end-of-life care. The WV Center for End-of-Life Care reports that most West Virginians who complete an advance directive use the combined form.
No document can predict every medical situation. Your living will gives clear guidance, and your representative can apply it to decisions nobody could have foreseen.
The Official West Virginia Forms
West Virginia has a statutory form for the living will, the medical power of attorney and the combined document, and the Center makes these forms available to the public. Many people search for a free West Virginia advance directive, and the official forms are a real help. But a statutory form is only as good as the thought and the signing that go into it. Here is where people run into trouble:
- Signing it wrong. A living will form that isn't properly signed, witnessed and notarized may not be valid when your family needs it.
- Choosing a witness or representative the law doesn't allow. The rules are covered below.
- Leaving out what matters to you. The "special directives or limitations" section is where your values and medical preferences belong, and many people leave it blank.
- Documents that don't fit together. Your health care directives, financial power of attorney, will and any guardianship nomination should point in the same direction.
Why Work With an Attorney Beyond the Form
When we prepare your advance directives, we talk through more than the blanks on the page. Who in your family is best suited to make hard medical decisions, and who might struggle? Do you have strong feelings about a nursing home, home care or particular treatments? Does your representative know your wishes, and are they willing to serve?
I also look at how your directives fit with your estate plan, your financial power of attorney and any long-term care planning. If something changes, such as a move, a new diagnosis, a divorce or the death of the person you named, we can update your documents so they still fit your life.
Witness and Notary Requirements
Under state law, a living will, medical power of attorney or combined form must be in writing, signed by you (or by another person in your presence at your express direction if you are physically unable to sign), and dated. It must be signed in the presence of two or more witnesses who are 18 years of age or older, and the witnesses' signatures must be acknowledged before a notary public. In short: signed and dated, with both witnesses and notarization.
A witness may not be:
- The person who signed the document for you at your direction
- Related to you by blood or marriage
- Entitled to any part of your estate under your will
- Directly financially responsible for your medical care
- Your attending physician
- Your representative or successor representative
Who Can Serve as Your Health Care Representative?
Most people choose a spouse, an adult child, another relative or a close friend. The following people may not serve as your representative or successor:
- A health care provider who is treating you (so your own doctor generally cannot serve)
- An employee of your treating provider who is not related to you
- An operator of a health care facility serving you
- An employee of that facility's operator who is not related to you
When Does Your Representative's Authority Start?
As long as you are able to make your own health care decisions, you make them. The document only takes effect for decision-making once you can no longer decide for yourself.
The law says a person is not presumed incapacitated just because of advanced age or disability. A determination of incapacity is made by your attending physician, a physician, a qualified psychologist, a physician assistant or an advanced practice registered nurse who has personally examined you, and it must be recorded in your medical record. Once you are found to be incapacitated, your representative can make decisions on your behalf, consistent with your wishes and your directives.
What Happens If You Don't Have an Advance Directive?
If you become incapacitated without a medical power of attorney or a court-appointed guardian, the attending physician or advanced practice nurse may select a health care surrogate. The law lists the people to consider, generally starting with your spouse, then adult children, parents, adult siblings, adult grandchildren and close friends.
Without a document, someone other than you picks who decides. If there is no good option, a family may need to consider guardianship, a court process that takes time and can be avoided with good planning.
POST Forms vs. Living Wills
A POST form (Physician Orders for Scope of Treatment, which state law calls Portable Orders for Scope of Treatment) is not the same as a living will.
- A living will is an advance directive you complete yourself, describing your general wishes.
- A POST is a medical order signed by a qualified physician, advanced practice registered nurse or physician assistant. It covers specific choices such as CPR, the level of medical intervention in an emergency, antibiotics, and medically administered fluids and nutrition. By law it is bright pink so emergency personnel can recognize it.
The Center explains that EMS providers cannot honor CPR requests in an advance directive because advance directives are not medical orders, while medical orders like the POST can be honored by all health care professionals. If your directives and a POST conflict, your own expressed directives are followed.
The West Virginia e-Directive Registry
The West Virginia e-Directive Registry, run by the WV Center for End-of-Life Care, stores advance directives and medical orders so treating providers can see them 24/7, including in an emergency. EMS providers can reach the Registry through MEDCOM.
The Registry is opt-in. You can mark the opt-in box on your forms or complete the Registry's opt-in form, then fax or mail copies to the Center. You can remove your forms later through the Center's revocation process. The responsibility falls on you or your representative to let your physician and other providers know your directives exist.
Changing or Revoking Your Directives
Your wishes can change, and your documents should change with them. Signing a new medical power of attorney or living will essentially revokes the earlier one, and the most recently dated document controls. When I change a client's directive, I also prepare a separate revocation of the old one so there is no confusion about which document counts.
After any change, tell your representative and your doctors, and update any copy on file with the Registry.
Frequently Asked Questions
Can I combine my living will and medical power of attorney?
Yes. West Virginia recognizes a combined document that names your decision-maker and states your treatment wishes in one place.
Does West Virginia require witnesses, a notary, or both?
Both. The document must be signed in the presence of two witnesses (or more) who are adults, and their signatures must be acknowledged before a notary public. Certain people, including relatives, your attending physician and your named representative, cannot be witnesses.
Can my doctor be my health care representative?
Generally no. A health care provider who is treating you, or an unrelated employee of one, cannot serve.
When does my representative's authority start?
Only after you are determined to be incapacitated by a qualified clinician who has personally examined you, and the determination is recorded in your medical record. Until then, you make your own decisions.
How do I change or revoke my directive?
Signing a new document essentially revokes the earlier one, and the most recently dated document controls. A separate written revocation adds clarity, and you should tell your doctors and the Registry.
What if I spend time in another state?
Rules vary from state to state. If you live part of the year in another state, bring that up when we meet so we can review how your documents fit.