Virginia Healthcare Power of Attorney Requirements

The declarant designates a primary health care agent, with name and contact information, using the suggested Advance Medical Directive form's Option I (Virginia Code Section 54.1-2984), which also lets the declarant name one or more successor agents who serve if the primary agent is unable, unwilling, or not reasonably available to act.

The suggested Advance Medical Directive form's Option II grants the agent authority to consent to, refuse, or withdraw any type of health care, treatment, or procedure, including specifying whether the agent may decide about artificially administered nutrition and hydration, mental health treatment admission, and cardiopulmonary resuscitation, except to the extent the declarant limits that authority in the document itself (Virginia Code Section 54.1-2984).

Federal HIPAA regulations govern how the agent can be authorized to access the declarant's protected health information once the document is in effect.

The document itself is valid once signed, but the agent's authority to actually make health care decisions may be exercised only after the declarant is determined incapable of making an informed decision, which under Virginia law generally requires two separate written certifications, one from the attending physician and one from an independent capacity reviewer, each after a personal examination, except when the declarant is unconscious or has a profound impairment of consciousness from trauma, stroke, or another acute condition, in which case the attending physician's certification alone is enough (Virginia Code Section 54.1-2983.2).

The attending physician must certify in writing after a personal examination, and, except when the patient is unconscious or has a profound impairment of consciousness from trauma, stroke, or another acute condition, a separate independent capacity reviewer, a physician or licensed clinical psychologist not otherwise treating the patient, must also certify in writing after his own personal examination. Both determinations must be renewed at least every 180 days while the need for health care continues.

The declarant may revoke the Advance Medical Directive at any time, as long as he is capable of understanding the nature and consequences of doing so, by a signed and dated writing, by physical cancellation or destruction of the document by the declarant or by another in his presence and at his direction, or by an oral expression of intent to revoke (Section 54.1-2985(A)). Revocation is effective once communicated to the attending physician, and no one is liable for failing to act on a revocation without actual knowledge of it. As of a 2024 amendment, merely filing, not finalizing, a divorce or annulment action, or a petition for custody or visitation of a child shared with the agent, automatically revokes that agent's authority (Section 54.1-2985(A1)). If the directive was filed with the state registry, its revocation must also be notarized before the Department of Health will remove it (Section 54.1-2985(B)).

The suggested Advance Medical Directive form's Option V lets the declarant appoint an agent to make an anatomical gift or organ, tissue, or eye donation after death, under the Revised Uniform Anatomical Gift Act (Virginia Code Section 32.1-291.1 et seq.), as referenced directly in the Health Care Decisions Act's own definitions section (Section 54.1-2982).

The agent may be granted authority to consent to the declarant's admission to a mental health facility, as specified in the Advance Medical Directive form (Virginia Code Section 54.1-2984), including a version that applies even over the declarant's later protest if the form's contemporaneous physician or psychologist attestation was completed. The certification mechanics for exercising that authority, meaning who must examine and certify the declarant's incapacity for this specific purpose, are in Section 54.1-2983.2(C).

The suggested Advance Medical Directive form itself contains a dedicated optional sub-section under Option IV letting the declarant modify her end of life, life prolonging procedure instructions if she is pregnant when her attending physician determines she has a terminal condition (Virginia Code Section 54.1-2984).

Virginia requires two subscribing witnesses over the age of 18 (Section 54.1-2983). Virginia Code Section 54.1-2982 expressly permits a spouse or blood relative of the declarant to serve as a witness, and expressly permits employees of health care facilities and physician's offices, acting in good faith, to serve as witnesses. The declarant's named agent is not permitted to serve as a witness (Virginia Code § 54.1-2982).

No civil or criminal liability shall be imposed upon any person for a failure to act upon a revocation unless that person has actual knowledge of such revocation (Section 54.1-2985(A)).

A health care facility, physician, or other person acting under a physician's direction is immune from criminal prosecution, civil liability, and unprofessional conduct findings for providing, continuing, withholding, or withdrawing health care under an authorization or consent obtained in accordance with the Health Care Decisions Act, and the Act presumes such actions were undertaken voluntarily and in good faith (Virginia Code Section 54.1-2988).

Section 54.1-2993, captioned Reciprocity, governs Virginia's recognition of an advance directive executed in another state, deeming it validly executed for Virginia purposes if it complied with Virginia law or the law of the state where it was executed. It is not a general assurance that a Virginia executed directive will automatically be honored in every other state; each other state's own law governs that separate question.

The suggested form's Option IV lets the declarant give specific instructions about life prolonging procedures, including artificially administered nutrition and hydration and cardiopulmonary resuscitation, to be withheld or withdrawn if the declarant is later determined to have a terminal condition, with a dedicated sub-option addressing pregnancy (Virginia Code Section 54.1-2984).

Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a Virginia Advance Medical Directive.

The law requires the agent to act consistently with the declarant's known religious beliefs and basic values (Sections 54.1-2984 and 54.1-2986.1(B)). The agent duty language in Option I of the form (Section 54.1-2984) states the agent shall not make any decision regarding the declarant's health care that he knows is contrary to the declarant's religious beliefs or basic values, and Section 54.1-2986.1(B) separately requires any agent or default decision-maker to make a good faith effort to ascertain the declarant's religious values, basic values, and previously expressed preferences.

Virginia law requires an attending physician who refuses to comply with a declarant's advance directive or an agent's health care decision to make a reasonable effort to transfer the declarant to another physician, following the procedure in Section 54.1-2990: documenting the medical or ethical basis for refusal, providing at least a 14 day window to arrange a transfer while continuing to provide reasonably available life sustaining treatment, and, for decisions to act over a declarant's protest, review by the facility's patient care consulting committee or two independent physicians (Section 54.1-2986.2(C)(5)).

Section 54.1-2983 itself states that in the event any portion of an advance directive is invalid or illegal, such invalidity or illegality shall not affect the remaining provisions of the advance directive.