A competent person has a right to refuse any form of medical treatment. An incompetent person can be protected from unwanted medical procedures as well if that person has executed a living will or has appointed a medical power of attorney. A living will is a document the person writes that says life-prolonging intervention is not to be used if that person is ever in a persistent vegetative state. A medical power of attorney is a document that designates a person to make health care decisions for you if you are unable to make those decisions for yourself. Living wills and medical powers of attorney help ensure you have control over your health care decisions even after you are unable to make those decisions for yourself. These documents can remove the stress of decision making during what can be a very difficult time for family members.
The situation is more complicated when there is neither a living will nor a medical power of attorney and the individual is in a persistent vegetative state. However, West Virginia law helps safeguard against potential conflicts. If an individual is terminally ill or in a persistent vegetative state and determined as incapacitated by the attending physician, the physician can name a health care surrogate. The surrogate has authority to make all health care decisions on the person’s behalf without court order or judicial involvement. The physician must make a reasonable inquiry to determine who the most qualified person is. Usually the health care surrogate is a close family member. If there are no close family members available, then your physician may consider any other person or entity, including, but not limited to, public agencies, public guardians, public officials, and corporations. Health care providers, unless related to the patient, may not be the surrogate.
The health care surrogate makes decisions based on the incapacitated individual’s expressed values and wishes, or, if unknown, the individual’s best interests. The surrogate can request that the nursing home withhold or withdraw life-prolonging intervention. Life-prolonging intervention is any medical procedure or intervention that serves only to artificially prolong the dying process or maintain the person in a persistent vegetative state. Among other things, it can include artificial respiration and artificial nutrition and hydration (often called a feeding tube). It does not include the administration of medicine or the performance of any other medical procedure deemed necessary to provide comfort or alleviate pain. Before the decision to withhold or withdraw life-prolonging intervention is carried out, at least one other qualified physician must examine the person and determine that the person is incapacitated.
For more information, see: West Virginia Health Care Decisions Act, W. Va. Code §§ 16-30-1 to -25 (2015); Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841 (1990); In the Matter of Conroy, 486 A.2d 1209 (1985); Betancourt v. Trinitas, 1 A3d. 823 (2010); Joan M. Krauskopf et al., Elderlaw: Advocacy for the Aging §§ 13.11, 13.16, 13.19, 13.20, 13.23, 13.24 (2nd ed. 1993).