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Advance Directive in Virginia: Two Witnesses, the Health Care Agent, and Who Decides Without One
Virginia's advance medical directive is one document that can name a health care agent, give instructions, or both. It needs two adult witnesses and no notary. Here is how it works under the Health Care Decisions Act.
By naveen · Updated · How we research our guides
What to know
- A written Virginia advance directive must be signed by your parent in the presence of two subscribing witnesses (Va. Code § 54.1-2983); the Health Care Decisions Act doesn't require a notary.
- A witness can be any adult, "including a spouse or blood relative of the declarant."
- The Code prints a suggested form, the "ADVANCE MEDICAL DIRECTIVE," that your parent may use but doesn't have to.
- Without an advance directive, Virginia law sets an order of people who can authorize care, starting with a guardian, then the spouse, then an adult child (§ 54.1-2986).
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
A Virginia advance directive is one document, signed before two adult witnesses with no notary needed, that can give your parent's health care instructions, name a health care agent, or both. Under Va. Code § 54.1-2983, any adult capable of making an informed decision may make one, and "A written advance directive shall be signed by the declarant in the presence of two subscribing witnesses." As the Virginia courts' self-help site puts it, "All adults in Virginia have a right to prepare a document to put their medical care wishes in writing."
What is an advance directive in Virginia?
It's a witnessed document, made under the Health Care Decisions Act (Va. Code §§ 54.1-2981 to 54.1-2993.1), that states your parent's health care wishes, names an agent, or both. Under the Act, one written advance directive may "(i) specify the health care the declarant does or does not authorize; (ii) appoint an agent to make health care decisions for the declarant; and (iii) specify an anatomical gift."
The courts' self-help page notes that many people call these instructions a living will. It's separate from a financial power of attorney, which doesn't cover health care decisions; see our Virginia power of attorney guide.
What can a Virginia advance directive include?
It can include health care instructions, the appointment of an agent, and an anatomical gift (§ 54.1-2983).
| Part | What it does | Statute |
|---|---|---|
| Health care instructions | Says what care your parent does or doesn't want, including at the end of life | § 54.1-2983, § 54.1-2984 |
| Appointment of an agent | Names an adult to make health care decisions when your parent can't | § 54.1-2983, § 54.1-2986.1 |
| Anatomical gift | Directs organ, tissue or eye donation and can name someone to carry it out | § 54.1-2983, § 54.1-2984 |
Your parent can use any or all of these. An adult whose attending physician has diagnosed a terminal condition can also make an oral advance directive "in the presence of the attending physician and two witnesses." For the general picture, see power of attorney vs. advance directive.
How do you sign a Virginia advance directive?
Your parent signs it in front of two witnesses, who also sign. The Act defines a witness as "any person over the age of 18, including a spouse or blood relative of the declarant," and adds that "Employees of health care facilities and physician's offices, who act in good faith, shall be permitted to serve as witnesses." The sections we read don't list anyone who is barred from witnessing.
The Health Care Decisions Act doesn't require a notary for the directive itself; the suggested form ends with a line for your parent's signature and two witness lines. The only notary step in the Act is for revoking a directive that was filed with the state registry.
After signing, "It shall be the responsibility of the declarant to provide for notification to his attending physician that an advance directive has been made." A physician who is told about it "shall promptly make the advance directive or a copy of the advance directive, if written," part of your parent's medical records.
Who can be the health care agent?
The agent must be "an adult appointed by the declarant." The Act's sections we read don't bar any class of person, such as a treating doctor or facility employee, from serving. The suggested form lets your parent name a primary agent and a successor.
An agent has decision-making priority over the relatives on the default list. The agent must try to learn the risks, benefits and alternatives of proposed care and your parent's religious beliefs, basic values and stated preferences, and base decisions on them; if those are unknown, on your parent's best interests (§ 54.1-2986.1).
When does the agent start making decisions?
The agent starts once your parent is found incapable of making an informed decision; until then, every adult "shall be presumed to be capable of making an informed decision." Under § 54.1-2983.2, the attending physician must certify in writing, after personally examining your parent, that they're incapable of making an informed decision, and get a written certification from a capacity reviewer, a licensed physician or clinical psychologist. The second certification isn't needed if your parent is unconscious or has a profound impairment of consciousness from trauma, stroke or another acute condition. The certification is repeated at least every 180 days while care continues.
Your parent must be told of the determination as far as they can understand it, and a single physician can later find in writing that they're capable again. Outside exceptions the Act spells out, it doesn't authorize care that the attending physician knows your parent protests, and those exceptions never cover withholding or withdrawing life-prolonging procedures.
Where do you get a Virginia advance directive form?
The Code prints one. Under § 54.1-2984, an advance directive "may, but need not, be in the following form," titled "ADVANCE MEDICAL DIRECTIVE." It has options to appoint an agent, list the agent's powers, give health care instructions, give end-of-life instructions and name an agent for an anatomical gift. Your parent crosses through any option they don't want.
The form states, "This advance directive shall not terminate in the event of my disability." Health care providers and trained "qualified advance directive facilitators" can hand out forms that meet § 54.1-2984 and help people complete them.
What happens if your parent has no advance directive?
The attending physician may rely on a guardian, a family member or another person from a priority list in the Health Care Decisions Act. Under § 54.1-2986, if your parent is incapable of making an informed decision and has no advance directive, or has one with no relevant instruction and no agent, the attending physician may act on the authorization of these people, in order of priority:
- a guardian, though one doesn't have to be appointed;
- the spouse, unless a divorce action has been filed and the divorce isn't final;
- an adult child;
- a parent;
- an adult brother or sister;
- any other relative, in descending order of blood relationship;
- for decisions that don't involve withholding or withdrawing a life-prolonging procedure, an adult who has shown special care and concern and knows your parent's values, as confirmed by a patient care consulting committee or two physicians.
If members of the same class disagree, "the attending physician may rely on the authorization of a majority of the reasonably available members of that class." The Act also says that not having an advance directive "shall not give rise to any presumption" about what care your parent would want. See conservatorship and guardianship.
How do you revoke a Virginia advance directive?
Under § 54.1-2985, your parent can revoke it at any time while able to understand what they're doing, "(i) by a signed, dated writing; (ii) by physical cancellation or destruction of the advance directive by the declarant or another in his presence and at his direction; or (iii) by oral expression of intent to revoke." A revocation takes effect "when communicated to the attending physician," and your parent can revoke part of it.
Divorce matters too. Filing for divorce or annulment of the marriage between your parent and the agent, or a petition for custody or visitation of a child they share, revokes the agent's authority.
What is the Advance Health Care Planning Registry?
The Department of Health "shall make available a secure online central registry for advance health care planning" (§ 54.1-2994). Your parent, or their legal representative or designee, can file an advance directive, a health care power of attorney, a Durable Do Not Resuscitate Order and similar documents. The courts' self-help page says the free registry is hosted at Virginia Health Information.
Filing is optional: "Failure to register a document with the registry maintained by the Department of Health pursuant to this article shall not affect the document's validity." Licensed providers can search it for patients who can't communicate. A revocation of a filed directive must be notarized before it's sent for removal, though a valid revocation works even if the registry isn't told.
What about Durable DNR orders and POLST?
A Durable Do Not Resuscitate Order is a physician's written order to withhold CPR, issued with your parent's consent or, if they can't consent, that of the person authorized to consent for them; the Act says it "is not and shall not be construed as an advance directive." The Virginia Department of Health provides the authorized form. If your parent says they want to be resuscitated, that revokes a provider's authority to follow the order.
A POLST form is another portable medical order. According to a VDH-hosted announcement, since March 2022 "the Virginia Department of Health recognizes all commonly used portable medical order sets across the US," including POLST, MOST and MOLST forms, "as acceptable Virginia durable DNR orders."
Frequently asked questions
Does an advance directive need to be notarized in Virginia?
No. Under Va. Code § 54.1-2983, a written advance directive must be signed by your parent in the presence of two subscribing witnesses, and the Health Care Decisions Act doesn't require a notary. A notary comes in only if your parent revokes a directive that was filed with the Department of Health's registry.
Can a family member witness an advance directive in Virginia?
Yes. Virginia defines a witness as any person over 18, "including a spouse or blood relative of the declarant," and allows employees of health care facilities and physician's offices acting in good faith. The sections we read don't bar anyone else, including the person named as agent, from witnessing.
Where can I get a Virginia advance directive form?
The Code of Virginia prints a suggested form, the Advance Medical Directive, in § 54.1-2984. Your parent may use it but doesn't have to; any written directive signed before two witnesses works. Health care providers and trained advance directive facilitators can also hand out forms that meet the statute.
Who makes medical decisions in Virginia if there's no advance directive?
The attending physician may rely on the people listed in § 54.1-2986, in order: a guardian, the spouse (unless a divorce is pending), an adult child, a parent, an adult sibling, other relatives by closeness of blood, and in some cases a close friend. A majority controls when members of one class disagree.
Is an advance directive from another state valid in Virginia?
Yes, if it was signed in line with Virginia law or the law of the state where your parent signed it. Under Va. Code § 54.1-2993, it's then treated as validly executed, but it's construed under Virginia law. Out-of-state orders about life-prolonging procedures are also deemed valid under § 54.1-2987.1.
Can my parent change their mind after signing?
Yes. While able to understand what they're doing, your parent can revoke all or part of an advance directive by a signed, dated writing, by destroying it, or by saying so. The revocation takes effect when the attending physician learns of it, so telling the doctor matters.
Getting started
An advance directive only helps if it's signed while your parent can sign it, before two adult witnesses, and if the doctor and agent have copies. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- Code of Virginia Title 54.1, Chapter 29, Article 8, Health Care Decisions Act: definitions (§ 54.1-2982), signing (§ 54.1-2983), capacity (§ 54.1-2983.2), the suggested form (§ 54.1-2984), revocation (§ 54.1-2985), default decision-makers (§ 54.1-2986), the agent (§§ 54.1-2986.1, 54.1-2986.2), Durable DNR orders (§ 54.1-2987.1) and out-of-state directives (§ 54.1-2993).
- Code of Virginia Title 54.1, Chapter 29, Article 9: the Advance Health Care Planning Registry (§§ 54.1-2994 to 54.1-2996).
- Virginia Judicial System Court Self-Help, Living Will - Advance Directive: plain-language overview and the registry.
- Virginia Department of Health, Durable Do Not Resuscitate Program: the Durable DNR form and POLST.
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