West Virginia Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   West Virginia's own statute spells out the complete Medical Power of Attorney form, including a 2022-added option that combines it with a Living Will in one document. Either version lets you (the principal) name a trusted adult (your representative) to make health care decisions for you if you become unable to make them yourself.

2. 2

   Your representative's authority does not start the moment you sign. It begins only after a determination of your incapacity is made and recorded under West Virginia Code Section 16-30-7, by your attending physician, another physician, a qualified psychologist, a physician assistant, or an advanced practice registered nurse who has personally examined you.

3. 3

   You must sign in front of two witnesses who are at least 18 years old, AND have those witnesses' signatures acknowledged before a notary public. Unlike many states, West Virginia requires both steps together, not a choice between them.

4. 4

   Both of your witnesses, not just one, must clear the state's full disqualification list: neither can be the person who signed for you, a relative by blood or marriage, entitled to your estate, directly financially responsible for your medical care, your attending physician, or your representative.

5. 5

   Your representative cannot be your treating health care provider, your residential care facility's operator, or an employee of either, unless that person is your relative (West Virginia Code Section 16-30-4(c)).

6. 6

   You can revoke the document by destroying it, by delivering a signed written revocation to your attending physician, or by telling a witness who is 18 or older, who signs a writing confirming it, once your physician is notified. If your representative is your spouse, a final divorce automatically ends their authority.

7. 7

   West Virginia operates a voluntary statewide e-Directive Registry where you can file a copy of your Medical Power of Attorney for treating clinicians to access, though filing is not required for the document to be legally valid.

8. 8

   This is a different document from West Virginia's Uniform Power of Attorney Act (Chapter 39B), which covers property and financial decisions, not health care, and which is durable by default unless you say otherwise.

West Virginia Requirements for Healthcare Power of Attorney

• Statutory Authority (West Virginia Code §16-30-1 et seq.)

  The Healthcare Power of Attorney must comply with the West Virginia Health Care Decisions Act (§16-30-1 et seq.), which provides the legal framework for advance directives in the state.

• Principal Capacity (West Virginia Code §16-30-4(a); definitions at §16-30-3(b))

  The principal must be a "competent adult" to execute a Medical Power of Attorney (§16-30-4(a)); "adult" is defined at §16-30-3(b) as a person 18 years of age or older, an emancipated minor, or a mature minor determined capable of making health care decisions.

• Representative Qualifications (West Virginia Code §16-30-3(q); disqualifications at §16-30-4(c))

  The medical power of attorney representative must be 18 years of age or older (§16-30-3(q), definition of "representative"). The representative cannot be the principal's treating health care provider, an employee of that provider, or an operator or employee of a health care facility serving the principal, unless that person is related to the principal (§16-30-4(c)).

• Execution Requirements (West Virginia Code §16-30-4(a), (b))

  The Healthcare Power of Attorney must be signed by the principal in the presence of two witnesses who are at least 18 years old, AND those witnesses' signatures and attestations must also be acknowledged before a notary public (§16-30-4(a)). Neither witness may be the healthcare representative, the principal's attending physician, related to the principal by blood or marriage, entitled to any part of the principal's estate, directly financially responsible for the principal's medical care, or the person who signed on the principal's behalf (§16-30-4(b));

• Successor Representative Designation (West Virginia Code §16-30-4(h))

  The statutory Medical Power of Attorney form includes a block for naming a successor representative who can act if the primary representative is unable, unwilling, or disqualified to serve (§16-30-4(h), statutory form text).

• Representative Authority Scope (West Virginia Code §16-30-6(c))

  The medical power of attorney representative has authority to release or authorize release of the principal's medical records to third parties and to make any and all health care decisions on the principal's behalf, except to the extent that authority is clearly limited in the document itself (§16-30-6(c)).

• HIPAA Authorization (45 CFR §164.508)

  The document should include authorization for the release of protected health information to the representative under the Health Insurance Portability and Accountability Act.

• Revocation Provisions (West Virginia Code §16-30-18)

  The principal may revoke the Medical Power of Attorney only by one of three specific methods: destruction of the document by the principal or by another person in the principal's presence and at the principal's direction; a signed, dated written revocation, effective only upon delivery to the attending physician; or a verbal expression of intent to revoke made before a witness 18 or older who signs and dates a confirming writing, effective only upon communication to the attending physician (§16-30-18(a)). A final divorce decree automatically revokes a spouse-representative's designation (§16-30-18(c)).

• Effective Date (West Virginia Code §16-30-6(d); determination at §16-30-7)

  The representative's authority commences only upon a determination of the principal's incapacity made under §16-30-7, by the attending physician, a physician, a qualified psychologist, a physician assistant, or an advanced practice registered nurse who has personally examined the principal (§16-30-6(d), §16-30-7(a)). The statutory form mandates that the representative's authority begins only upon a determination of the principal's incapacity.

• Life-Prolonging Intervention and End-of-Life Decisions (West Virginia Code §16-30-3(i), §16-30-6(c))

  "Health care decision" is defined to include decisions about life-prolonging intervention (§16-30-3(i)), and the representative's general grant of authority under §16-30-6(c) extends to withholding or withdrawing such intervention unless the document limits it.

• Anatomical Gifts (West Virginia Code §16-19-1 et seq.)

  In the absence of the principal's written directive, decisions about anatomical gifts are governed by the West Virginia Uniform Anatomical Gift Act (West Virginia Code §16-19-1 et seq.), as cross-referenced in West Virginia Code §16-30-6(f). If the principal has expressed a wish about anatomical gifts in the Medical Power of Attorney itself, the representative must follow it.

• Mental Health Treatment Decisions (West Virginia Code §16-30-3(i); second-opinion safeguard at §16-30-24)

  "Health care decision" is defined to include psychiatric treatment (§16-30-3(i)), so a representative's default authority already extends to mental health treatment decisions unless the principal limits it in the document.

• Dispute Resolution and Court Review (West Virginia Code §16-30-8(e))

  West Virginia Code §16-30-8(e) allows a person ranked as a possible surrogate to seek injunctive relief or file a petition for review of a surrogate's selection or decision with the circuit court of the county where the incapacitated person resides, or with the Supreme Court of Appeals. This applies specifically to surrogate-selection disputes; the Act does not separately address disputes involving an already-appointed medical power of attorney representative beyond the general savings clause preserving existing legal rights (§16-30-16).

• Out-of-State Recognition (West Virginia Code §16-30-21)

  A living will, medical power of attorney, or similar advance directive validly executed in another state is recognized in West Virginia if it complies with either West Virginia law or the law of the state where it was executed (§16-30-21, "Reciprocity").

• Patient Self-Determination Act Compliance (42 U.S.C. §1395cc(f))

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

• Healthcare Provider Immunity (West Virginia Code §16-30-10)

  A physician, licensed health care professional, health care facility, or employee is not subject to criminal or civil liability for good-faith compliance with or reliance upon the directions of a medical power of attorney representative (§16-30-10(a)).

• Religious and Moral Beliefs Standard (West Virginia Code §16-30-9(a))

  The representative must make health care decisions in accordance with the principal's wishes, including the principal's religious and moral beliefs, or, if those wishes are unknown, in the principal's best interest, which must itself reflect the principal's religious and moral beliefs to the extent reasonably known (§16-30-9(a)).

• E-SIGN Act Compliance (15 U.S.C. §7001 et seq.)

  West Virginia's requirement for a physical signature in the presence of witnesses and a notary means this document cannot be executed electronically under the federal Electronic Signatures in Global and National Commerce Act.