Category: Incapacity, Decision Making, & Advance Directives

If you have any particular wishes regarding the treatment of your body, you may detail them in this section of the living will or medical power of attorney. For example, you may strongly oppose the idea of giving or receiving organ donations because of your religious beliefs. Or you may not wish to receive any blood or blood products from another human being. 

Because modern medical treatment continues to expand, it is important to consider what kinds of treatment are acceptable to you. The following is a list of types of medical techniques or treatments that you may wish to consider when making out a living will or a medical power of attorney. Also, there may be other types of medical treatment not on this list that you wish to avoid. If you feel strongly about these or any other kind of medical treatment, you may wish to indicate your preferences regarding these treatments in the special directives and limitations sections of your living will or medical power of attorney. 

•organ donation or anatomical gift 
•cardiopulmonary resuscitation (CPR) 
•mechanical respiration (breathing machine) 
•feeding tube or other artificial/invasive form of nutrition (food) or hydration (water) 
•blood or blood products 
•surgery or invasive diagnostic techniques  
•kidney dialysis 
•antibiotics 

Information about things to consider in executing medical advance directives is available at http://www.wvendoflife.org and http://www.wvethics.org. (last visited June 1, 2015)

Every person is presumed to consent to having CPR performed on him/her unless that person has executed a Do-Not-Resuscitate (DNR) order, a medical power of attorney, or a living will which indicates that he/she does not want CPR. Some people decide that they do not want CPR because in certain situations they feel that CPR may cause more pain and unnecessarily prolong an inevitable death. If you decide that you do not want CPR performed on you, you can include a request in your living will that you do not want to be resuscitated. This request must be followed by a DNR order from a treating physician. The DNR order states that in the event of cardiac arrest, CPR is not to be administered.  

For more information, see: Do Not Resuscitate Act, W. Va. Code §§ 16-30C-1 to -16 (2015); WVU Center for Health Ethics and Law, http://www.wvethics.org (last visited June 1, 2015); West Virginia Center for End-of-Life Care, http://www.wvendoflife.org (last visited June 1, 2015).

To avoid being kept on life support you can do one of two things: you can execute a living will, or you can include instructions in a medical power of attorney directing your representative to request that you not be kept on life support. 

For more information, see: West Virginia Health Care Decisions Act, W. Va. Code §§ 16-30-3 to -4, 16-30-18 to -19 (2015); http://www.wvendoflife.org (last visited June 1, 2015).

Perhaps; it depends on whether the court would grant a request made by you to be appointed as your parent’s guardian and/or conservator. Poor judgment alone does not make someone a protected person. Any interested individual can petition the court to appoint a guardian or conservator for an alleged protected person. 

The law clearly states that no person can have a guardian or conservator appointed to manage her affairs without first being given notice, having an attorney to represent him or her, and having an opportunity for a hearing. The court will appoint an attorney to represent your parent. You may choose to have an attorney represent you, but your attorney will not be appointed nor paid for by the court. If after due process the court determines your parent needs a guardian and/or conservator, the court will then make a determination of who would be most appropriate to appoint in those roles. 

Any adult can be a guardian or conservator (or both), as long as the court determines that person to be suitable and the person is not employed by, or connected to, any public agency that gives help to the protected person. In theory, the protected person can choose who he wants to be his guardian or conservator, but the individual may be unable to do so because of his incapacity. The court may appoint co-guardians or co-conservators if it is in the best interest of the protected person.  

Conservators and guardians are required to fulfill specific duties under the law, including filing personal and financial reports with the court on a regular basis. A free training detailing these duties and answering various questions about guardianship and conservatorship is available on the West Virginia Supreme Court of Appeals website.  

In order for you to be your parent’s guardian, the court would first have to determine whether your parent would likely qualify as a protected person under the law. A protected person is a mentally impaired adult, eighteen years or older, who is unable to understand or respond to people, events, and environments to such an extent that the person cannot: 

•take care of himself/herself without help, or 
•manage property or finances or provide for his/her support (or the support of dependents) without help. 

If the court determines that your parent falls into one or both of these categories, he/she will be deemed a protected person. The court will not appoint a guardian or conservator merely because you or someone else disagrees with certain choices your parent has made about his/her finances or health care; there must be clear and convincing proof that your parent is unable to understand his/her surroundings and function without assistance.  

In order to file for guardianship, the first thing you must do is file a petition with the clerk of the circuit court. You must file in the county where your parent is living. There will be a filing fee which can be waived if you cannot afford to pay it. The required forms can be downloaded from the WV Supreme Court of Appeals website or can be provided for a copy fee by the county Circuit Clerk. You will have to give some or all of the following information: 

•your parent’s name, date of birth, place of residence or  

location, and post office address; 

•the names and addresses of the nearest known living relatives; 
•the name and address of the individual or health care facility that is responsible for your parent’s care and a detailed list of all the things they do for his/her benefit; 
•the name and address of anyone who has power of attorney for your parent, copies of these documents, and a detailed list of all the things they do for your parent’s benefit;  
•the name, address, and phone number of your parent’s attorney, if he/she has one; 
•whether your parent can attend a hearing, and if not, the reasons why he/she cannot attend; 
•the extent of the guardianship/conservatorship requested, the reasons why, and the specific areas of protection or assistance requested; 
•your name, address, age, occupation, and criminal history; or 
•the name, address, relationship, and status of the guardian selected by your parent if it is someone other than you. 

You will also have to include a report from a licensed physician or psychologist with the petition. The report must contain all of the following: 

•a description of your parent’s incapacity, including specific limitations; 
•an evaluation of your parent’s mental and physical condition; 
•a description of the health care services being provided for your parent, the reasons for these services, a recommendation of the most suitable living arrangement, and if appropriate, treatment and rehabilitation plans; 
•an opinion about whether an appointment of a guardian is necessary; 
•if your parent cannot attend a hearing, an opinion as to  

why attendance would be detrimental to his/her health; 

•if your parent can attend a hearing, an explanation of  

any medication(s) he/she will be on that will affect him/her at the hearing; 

•the signature of the physician who wrote the report; and 
•the date of the report. 

You will also have to send a financial statement with the petition. The statement must include your parent’s Social Security number and an approximate value of his/her property, assets, and income.  

After you file the petition, the circuit clerk will set a date for the hearing. The hearing will be held within 60 days of the time you file the petition. The clerk will give you a notice of hearing. You are required to notify your parent and everyone whose address is on the petition. You must send these people a copy of the notice of hearing and the petition by certified mail with a return receipt requested no later than 14 days before the hearing. The notice must also contain a brief statement regarding the purpose for the proceedings and must contain the following notice in large print:  

POSSIBLE CONSEQUENCES OF A COURT FINDING 

THAT YOU ARE INCAPACITATED 

At the hearing you may lose many of your rights. A guardian may be appointed to make personal decisions for you. A conservator may be appointed to make decisions concerning your property and finances. The appointment may affect control of how you spend your money, how your property is managed and controlled, who makes your medical decisions, where you live, whether you are allowed to vote and other important rights. 

The court will then appoint an attorney to participate in the proceeding. The attorney will represent your parent–not you. At the hearing, the court will decide whether your parent needs a guardian and, if so, whether you will be appointed as his/her guardian. 

If you are appointed guardian, then you must sign an oath promising to faithfully perform the duties of guardianship. You must also complete educational training to learn more about your duties. The education program is developed by the secretary of health and human resources and may consist of written materials and/or audiotapes or videotapes. A tutorial for guardians can be found at http://www.courtswv.gov/public-resources/guardian-conservator/index.html for individuals wanting to view the process. Finally, the court will decide whether it is necessary that you post a bond. You must also send the order of appointment to your parent within 14 days along with a brief statement in large print of your parent’s rights to seek an appeal for modification or termination.  

Anyone who wants to terminate the guardianship or conservatorship may petition the court. Both guardianship and conservatorship automatically terminate when your parent dies. 

For more information, see: W. Va. Code § 39B-1-108 (2015); West Virginia Guardianship and Conservatorship Act, W. Va. Code §§ 44A-1-1 to -14 (2015); West Virginia Guardianship and Conservatorship Act, W. Va. Code §§ 44A-2-1 to -13 (2015); State ex rel. Shamblin v. Collier, 191 W.Va. 349, 445 S.E.2d 736 (1994).

The new power of attorney law specifies that if a conservator is appointed your power of attorney agent is accountable to the conservator and the agent’s authority under the power of attorney terminates, unless otherwise ordered.

When a person becomes incapacitated to manage his or her own any interested party can file a petition to have a conservator or guardian appointed for the alleged “protected person.” If the court deems the person incompetent to manage his or her finances a conservator is appointed to manage the financial affairs of the protected person. For personal decisions that are not financial the court can appoint a guardian if it finds such appointment necessary. An incompetent person has a right to tell the court who she prefers to be appointed to either of these roles, but the court has the ultimate discretion as to who will be appointed.

By executing a power of attorney you may eliminate, limit, or supersede the need to have a conservator or guardian appointed. The new statutory power of attorney form includes the option for you to nominate a particular individual to be your guardian or conservator if appointment of either becomes necessary. You could name your power of attorney agent as that nominee or someone else, or leave it blank. The court is not required to appoint the person you name in a durable power of attorney to be your conservator or guardian. One reason the court might appoint someone else instead is if the agent or nominee is engaging in improper conduct or is unable or unwilling to assume the responsibilities.

For more information, see: W. Va. Code § 39B-1-108 (2012); West Virginia Guardianship and Conservatorship Act, W. Va. Code §§ 44A-1-1 to -13 (2011); State ex rel. Shamblin v. Collier, 191 W. Va. 349, 445 S.E.2d 736 (1994).

You have many options available and each option varies by the amount of control your are willing to give to the person you wish to have the power to make certain decisions for you. Please see the table below which describes many of the options available to you as you prepare for incapacity.

Legal Device	Party Who Chooses Your Decision-maker			Type of Decision the Legal Device Covers		Timeframe
	You	The Court	Your Doctor	Financial or Property	Personal or Healthcare
(Financial) Power of Attorney	x			x		Effective when executed or otherwise state in the device, power ends when revoked or you die
Medical Power of Attorney	x				x	Effective upon your incapacity, may be revoked if you regain capacity
Guardian		x			x	The court determines when this device is effective
Conservator		x		x		The court determines when this device is effective
Healthcare Surrogate			x		x	Effective when appointed, becomes ineffective when you regain capacity
Living Will	n/a	n/a	n/a		x	Effective upon your incapacity, may be changed while you are competent

For more information, see: West Virginia Health Care Decisions Act, W. Va. Code §§ 16-30-1 to -24 (2014); Uniform Power of Attorney Act 39B-1-101, et seq. (2014); Mental Capacity Standards in West Virginia: A Handbook on Legal Decisionmaking Authority (June 2002). A copy of this publication can be obtained by contacting West Virginia Senior Legal Aid, Inc. at 1 (800) 229-5068.

A guardian is a person appointed by the court to make decisions for you regarding your health and personal welfare if you become unable to make these decisions for yourself. The duties of guardianship include making decisions about the individual’s care, support, health, education, and therapy. The guardian must keep in contact with the protected person and visit him/her at least once every six months. The guardian also must encourage the individual’s participation in decision-making. The responsibilities may be both financial and personal. However, the appointment may only be for a limited guardianship, which authorizes responsibility for only those matters specifically mentioned by the court.  

A conservator is also appointed by the court. A conservator is appointed to handle your estate and financial affairs when you become unable to do so. The conservator uses the income of the estate for the support, care, and health of the individual and his/her dependents. The conservator is also responsible for investments and managing the estate. Neither guardians nor conservators may profit directly or indirectly from the estate or income of the protected person. 

For more information, see: Mental Capacity Standards in West Virginia: A Handbook on Legal Decisionmaking Authority (June 2002). A copy of this publication can be obtained by contacting West Virginia Senior Legal Aid, Inc. at 1 (800) 229-5068 or going to http://seniorlegalaid.net/index.php?option=com_docman&itemid=45 (last visited May 29, 2015).

You can revoke a DNR order at any time. To do this, you must either write of your intention or orally communicate your intention to your physician or other health care professional. If you are at home, you may revoke the DNR by destroying it, but you must still notify your physician of your intention to revoke the DNR. A health care surrogate may also revoke a DNR if he feels that doing so would be in the person’s best interests. 

For more information, see: W. Va. Code §§ 16-30C-1 to -16 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

If you decide that you do not want to receive CPR if you experience cardiac arrest, you should obtain a DNR order. You can also include your wish not to be revived in your living will and/or you medical power of attorney. To receive a DNR order, you must request that you physician provide the order in writing. A representative or health care surrogate may also request a DNR order on your behalf if you are incapacitated. If you do not reside in a health care facility, your order must be reduced to a card that can be carried with you. In addition, you must wear a DNR identification bracelet or necklace. 

Examples of DNR orders are available in the West Virginia Code § 16-30C-6(f) (2015) and at http://www.wvethics.org (last visited May 29, 2015). 

For more information, see: W. Va. Code §§ 16-30C-1 to -16 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

A Do-Not-Resuscitate (DNR) order is a document issued by your physician which states that you do not wish to receive life-saving measures such as cardiopulmonary resuscitation (CPR). When a DNR order is properly executed, a health care provider may not perform CPR on you if he/she knows about the order. If the health care provider feels as if he/she cannot abide by the order if you experience cardiac arrest, he/she must transfer you to a facility that will. 

Executing a DNR is in no way considered suicide, and withholding CPR from a person who has a DNR order is in no way considered murder. A DNR order will not invalidate a life insurance policy. 

For more information, see: W. Va. Code §§ 16-30C-1 to -16 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

A health care surrogate is appointed by your doctor or by an advanced nurse practitioner if you become unable to make your own health care decisions but have not previously executed a document such as a medical power of attorney or a living will, or a court has not appointed a guardian for you. The surrogate can make any necessary health care decisions for you if you are incapacitated and is given the same access to your medical records as you would have. The surrogate can make decisions related to your placement in a nursing home, applying for Medicaid, and withholding or withdrawal of life-prolonging intervention. 

Surrogates are chosen according to a prioritized list. Spouses are considered first, then adult children, parents, adult siblings, adult grandchildren, and close friends. Using this list and other criteria, the physician selects the best-qualified person. These criteria include the person’s demonstrated concern, contact with you, and proximity. Please note, however, that if you are in a non-traditional relationship, your partner may not be recognized as the surrogate. To avoid the potential of your partner being left out of the decision making process, it is best that you designate that person as your Medical Power of Attorney. 

The surrogate makes decisions without a court order or judicial involvement. The surrogate is legally required to make health care decisions in accordance with your wishes including your religious and moral beliefs. If your surrogate does not know what your wishes are and cannot find out using reasonable efforts, then he/she must make decisions he/she thinks are in your best interests. The surrogate can make decisions about autopsy, organ donation, and tissue donation after your death. If you have a living will or a medical power of attorney stating your wishes regarding autopsy or the desire to make an anatomical gift, or have done so using a donor card or driver’s license, the surrogate must follow your wishes. However, without a written directive, the surrogate must make these important decisions on your behalf for you. 

For more information, see: W. Va. Code §§ 16-30-6 to -9 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

You can revoke a financial power of attorney at any time while you are competent. The revocation must be in writing, and a copy of the writings sent to the agent and to anyone the attorney-in-fact has dealt with or is likely to deal with on your behalf. It is critical to give notice to both the agent and third parties who your agent might deal with on your behalf, such as banks, insurance agents, financial advisors, etc. because without that notice they may legally continue to respect the power of attorney. Merely signing a revocation will not end the authority as a practical matter for anyone who has not received notice of the revocation.  

For more information, see Uniform Power of Attorney Act, W. Va. Code §§ 39B-1-101, et seq. (2015).

The Uniform Power of Attorney Act passed in WV in 2012 sets forth how to execute a valid financial power of attorney. The new law includes a statutory form. By executing a financial power of attorney you are giving your agent authority to access your money and property starting immediately. This gives the agent full access to buy, sell, trade, and spend money and property depending on the specific powers you give through the statutory form. Consulting with an attorney about whether you need a power of attorney and if so what it should include is the safest way to protect your interests in considering this kind of planning. Unlike a will or a medical power of attorney, executing this kind of document without careful consideration can make your money, your home, and your belongings vulnerable to exploitation. 

To be a valid power of attorney, it must be signed by the principal (the person who is giving the authority to the agent) and the signature must be notarized. Witnesses are not required for financial powers of attorney, unlike for medical powers, living wills, and wills, where two witnesses are required. 

West Virginia law states specifically how a medical power of attorney must be written to take effect. 

For more information, see Uniform Power of Attorney Act, W. Va. Code §§ 39B-1-101, et seq. (2015) .

A financial power of attorney (POA) is a device with which you can appoint a trusted adult to manage your affairs. In June 2012 West Virginia enacted the Uniform Power of Attorney Act which dramatically reformed the law in our state regarding financial powers of attorney. This question and answer is based on that law.  

In a power of attorney you are authorizing the person you appoint, your agent, to manage aspects of your finances typically starting at the moment you execute the POA. Many seniors believe that the agent’s authority under a power of attorney doesn’t begin until you are no longer capable of managing your own affairs, but this is a myth. The default position of a power of attorney is that agent authority begins immediately. 

You may choose to add language to your power of attorney document that would delay when the agent’s authority begins, this is called a springing power of attorney, because the authority springs forth when the circumstances or conditions are met as set forth in the document. Springing powers are rarely an effective or safe choice, this is why the new law makes immediate authority the default position. In older powers of attorney the authority commonly sprung forth when the principal became incapacitated. Since incapacity is not an on or off switch, but is rather a variable and complex circumstance, it can be nearly impossible to determine with certainty when a principal has become incapacitated to manage his or her financial affairs. People with dementia may have years of “good days and bad days,” and even have variable lucidity at different times of the day. Some medications and infections can cause temporary periods of confusion and memory problems. Different people and professionals can have conflicting assessments of a person’s incapacity. Capacity can come and go, making it very complicated if your document only gives authority when you are currently incapacitated. 

If the reason you do not want your agent to have authority now is because you do not trust him or her to have access to your money and property right now, then you are certainly choosing the wrong agent. Once you lose the capacity to oversee your agent’s actions, that person will not suddenly become more trustworthy. 

There are many considerations you should take into account when considering whether having a POA is right for you. This is not a kind of planning document that every person should have, necessarily. These documents give substantial authority over your property and finances to your agent. This power is easily exploited, and sadly this kind of abuse perpetrated by family, close friends, and trusted people is all too common. If someone is suggesting that you give him or her power of attorney you should never execute this document merely because you don’t want to hurt that person’s feelings, or because you are afraid he or she will not continue to help you if you don’t.  

For more information, see: Uniform Power of Attorney Act, W. Va. Code §§ 39B-1-101-110. (2015).

West Virginia law provides four ways in which a medical power of attorney can be revoked. First, the medical power of attorney document can be destroyed by the principal or at the principal’s direction. If the principal tells someone else to destroy the document, that person must destroy it in the principal’s presence. 

Second, written notification to the physician will revoke a medical power of attorney. However, the medical power of attorney is not revoked until the physician receives the notice of revocation. 

Third, a verbal expression of termination in front of a witness who is at least 18 years old revokes the power of attorney. The witness must put the verbal expression into writing and then sign and date it. Then the writing must be given to the physician. Again, the medical power of attorney is not revoked until the physician receives the notice. 

Fourth, when a person is divorced, a medical power of attorney that designates the former spouse as representative is revoked automatically. If you and your spouse obtain a divorce, you will need to appoint a new power of attorney. If you still want your former spouse to serve as your representative, he or she may do so, provided that you reappoint them with a new medical power of attorney. 

See Appendix C of this manual for forms for Revocation of Medical Power of Attorney and Revocation of Living Will. 

For more information, see: West Virginia Health Care Decisions Act,W. Va. Code §16-30-18 (2015); W. Va. Code §§ 39B-1-110 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

A medical power of attorney must be executed in the manner laid out in the West Virginia statutory code. The law requires that, to be effective, the medical power of attorney be: 

•signed by the principal in the presence of two witnesses, and 
•signed by the two witnesses and a notary public. 

The law places limits on who may act as a witness for your medical power of attorney. A witness cannot be: 

•a person 17 years old or younger 

•a person who signed the medical power of attorney on behalf of and at the direction of the principal 

•related by blood or marriage to the principal 

•entitled to a share of the principal’s estate 
•legally responsible for the principal’s medical expenses 
•the attending physician, or 
•the representative appointed in the medical power of attorney. 

Finally, the law does make some people ineligible to act as your representative. The following are people who may not act as your representative: 

•your treating health care provider, 
•an employee of your treating health care provider unless that person is related to you, 
•the operator of the health care center treating you, or 
•an employee of the health care center that is treating you unless that person is related to you. 

West Virginia law states specifically how a medical power of attorney must be written to take effect.  

Medical powers of attorney are especially important for people in non-traditional relationships. Oftentimes, a person’s partner can be shut out of the decision making process unless he/she has the explicit power given to him/her by her partner in the form of a medical power of attorney. 

Instructions on how to obtain sample living will forms are available in Appendix C. 

For more information, see: W. Va. Code §§ 16-30-1 to -25 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

A medical power of attorney is a device that allows an adult you trust to act as your representative to make health care decisions for you if you become incapacitated. You create a medical power of attorney before you become incapacitated and it only takes effect after you become incapacitated. Your representative does not have any authority until a medical professional determines you are medically incapacitated. Furthermore, the powers given to your representative are only those related to your health care; your representative has no control over your property or finances if you become incapacitated. (See also the question on how to appoint someone to make health care decisions on page 51.)  

A medical power of attorney is likely valuable for any adult to have. That way, if something unexpected happens to you, someone you trust can have the authority to make your health care decisions for you. If you don’t execute a medical power of attorney and a medical decision needs to be made for you at a time that you are incapable, your physician may appoint a healthcare surrogate to make decisions for you (see also healthcare surrogate question on page 56).  

For more information, see: W. Va. Code §§ 16-30-1 to -24 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

A power of attorney is a device you can use to appoint another person to make decisions on your behalf for a set period of time. There are two kinds of powers of attorney in WV, medical power of attorney and financial power of attorney. You may choose to have both or either or none. The person you appoint to handle your affairs is called your agent or your representative. Powers of attorney typically stay valid until you revoke them or until you die. When you are preparing for the possibility of becoming incapacitated both kinds of powers of attorney are options for legally choosing who will make decisions for you. It is a common misconception that powers of attorney are something appointed through a court after a person has become incapacitated. That is not true; a power of attorney to handle decision making can only be given by you through executing the appropriate document, and can only be executed while you are competent.  

A financial power of attorney can be a low-cost, flexible, and private form of surrogate decisionmaking, but it can also be a tool for financial exploitation. Unlike guardians, conservators, and representative payees, agents under financial powers of attorney are not monitored regularly by any government agency, Though it is illegal for an agent to use the principal’s money or property for his own benefit, once an agent abuses the authority it may be difficult or even impossible to get that money or property back. Therefore, a financial power of attorney is not necessarily something every adult should execute. 

It is common for people to fail to carefully distinguish between the two kinds of powers of attorney, so anytime someone is talking to you about powers of attorney it is wise to ask for a clarification on whether you are talking about medical or financial. When someone tells you he or she is a power of attorney agent the only way you can know for certain what kind of power of attorney and what are the limits of the agent’s authority is to see the document for yourself.  

For more information, see: W. Va. Code §§ 16-30-1 to -25 (2015), and W. Va. Code §§ 39B-1-101, et seq (2015) .

A living will may be revoked at any time by any one of the three methods below: 

•through physical destruction of the document by the principal (the person who created the living will) or by someone directed by the principal and in the principal’s presence  
•upon receipt by the physician of the principal’s written notification to terminate the living will 
•through a verbal expression of termination in front of a witness who is 18 years old or older and who puts the verbal expression into a signed and dated writing which is received by the physician. 

See Appendix C of this manual for forms for Revocations of Medical Power of Attorney and Revocation of Living Will.  

For more information, see: W. Va. Code § 16-30-4, 16-30-18 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

Living wills are created before you become incapacitated and are limited only to the issue of prolonging life upon the onset of terminal illness or entering a persistent vegetative state. In WV we have a statutory form for living will that you may use, or you may choose to use a different form or a document you create yourself. To be valid, a living will must conform to five requirements set by law: 

•it must be in writing; 
•it must be executed by the principal (the person who wishes to avoid life support) or by the direction of the principal if the principal is physically unable to do so; 
•it must be dated; 
•it must be signed by the principal in the presence of two adult witnesses; and 
•the witnesses must sign the living will, and their signatures must be notarized. 

West Virginia law does not allow certain people to be witnesses for you when you sign a living will. Your witnesses may not be: 

•any person signing the living will for a principal who is physically unable to do so, 
•related to the principal by blood or marriage, 
•entitled to any portion of the principal’s estate unless the witness does not know that he or she is in the will, 
•financially responsible for the care of the principal, 
•the attending physician, or 
•the principal’s named medical power of attorney representative or the person named as successor medical power of attorney representative. 

To enhance the likelihood that your living will is available and followed it should be given to your physician, local hospital, and other medical providers you use. West Virginia now has an e-directory that you can opt into so that your forms can be automatically accessed by participating medical facilities throughout the state. Your living will should be included in your medical records. If you do not have a doctor, give a copy to someone else to give to a doctor in case you are not able to do so. When a living will has been executed, the attending physician must provide confirmation and documentation of terminal condition or persistent vegetative state. This confirmation allows the instructions of the living will to be carried out. 

Instructions on how to obtain a living will form are available in Appendix C. 

For more information, see: W. Va. Code §16-30-4 (2015); http://www.wvendoflife.org (last visited May 28, 2015).

A living will is a document that expresses your wish not to have your life artificially prolonged if you become terminally ill and be unable to make health care decisions for yourself or if you enter a permanent vegetative state. Life-prolonging intervention includes artificial feeding and breathing tubes, but it does not include administration of medication or the performance of any medical procedure deemed necessary to relieve pain and provide comfort. A terminal illness is an incurable condition that the physician states will result in death in a relatively short time. A persistent vegetative state is diagnosed by a qualified physician who states that the patient has suffered irreversible damage to brain stem function and that the patient experiences no self-awareness or awareness of his/her surroundings.  

If you wish to avoid life support, you may execute a living will. By expressing your own desires about how you wish to be treated upon becoming terminally ill or entering a persistent vegetative state you may make it easier for your loved ones to make what might otherwise be complicated and emotional decisions regarding your care. The law requires medical providers to respect your properly-executed living will. 

For more information, see: W. Va. Code §§ 16-30-3 to -4 (2015); http://www.wvendoflife.org (last visited May 28, 2015).

Advance directives are documents in which you give instructions about what is to happen in the event that you can no longer make decisions for yourself. Currently, four main types of health care directives exist: a living will, a medical power of attorney, the appointment of a health care surrogate, and a Do Not Resuscitate order.  

For instructions on how to obtain advance directive forms, see Appendix C of this manual.