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Medical Power of Attorney in West Virginia: Witnesses, Notary and the Living Will
A West Virginia medical power of attorney needs two adult witnesses and a notary, and the witnesses can't be relatives. Here is how it and the living will work under the Health Care Decisions Act.
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What to know
- A West Virginia medical power of attorney or living will must be dated, signed by your parent in front of two adult witnesses, and the witnesses' signatures acknowledged before a notary (W. Va. Code § 16-30-4).
- A witness can't be related to your parent by blood or marriage, an heir under their will, their attending physician, or the person they name as representative.
- The representative's authority starts when a clinician who has examined your parent determines they're incapacitated and records it.
- With no medical power of attorney or guardian, the attending physician selects a surrogate, starting with the spouse, then adult children (§ 16-30-8).
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
A West Virginia medical power of attorney names someone to make your parent's health care decisions, and it must be signed before two adult witnesses whose signatures a notary acknowledges (§ 16-30-4). The law is the West Virginia Health Care Decisions Act, Chapter 16, Article 30 of the Code. It recognizes three documents: "a living will, medical power of attorney, or combined medical power of attorney and living will." Each must be "signed in the presence of two or more witnesses" and "signed and attested by such witnesses whose signatures and attestations shall be acknowledged before a notary public" (§ 16-30-4).
What is a medical power of attorney in West Virginia?
It's a document in which your parent names a "medical power of attorney representative" to make health care decisions when they can't. A health care decision, under § 16-30-3, is "a decision to give, withhold, or withdraw informed consent to any type of health care," including hospitalization, "treatment in a nursing home or other facility, home health care, and organ or tissue donation."
Unless your parent limits it, the representative can "make any and all health care decisions on behalf of an incapacitated person" and can release medical records (§ 16-30-6). A financial power of attorney doesn't cover any of this; see our West Virginia power of attorney guide.
How is it different from a living will?
A medical power of attorney names a decision-maker; a living will states your parent's own wishes about life-prolonging intervention.
| Document | What it does | When it applies |
|---|---|---|
| Medical power of attorney | Names a representative and a successor to make health care decisions | After your parent is determined to be incapacitated |
| Living will | States your parent's wishes on withholding or withdrawing life-prolonging intervention | Under the sample form, when your parent can't communicate and one physician who has examined them certifies a terminal condition |
| Combined form | Both in one document | Each part as above |
A living will is "a written, witnessed advance directive governing the withholding or withdrawing of life-prolonging intervention." Under the statute's sample form, oral food and fluids "shall be offered as desired and can be tolerated." If two of your parent's directives conflict, "the one most recently completed takes precedence only to the extent needed to resolve the inconsistency" (§ 16-30-5). For the general picture, see power of attorney vs. advance directive.
How do you sign a medical power of attorney in West Virginia?
Your parent signs and dates it in front of two adult witnesses, and the witnesses' signatures are acknowledged before a notary. All three documents follow the same steps under § 16-30-4, and each must be in writing. If your parent is physically unable to sign, another person can sign in their presence at their express direction. Two or more witnesses, each at least 18, watch your parent sign and then sign themselves. On the sample forms, a notary then certifies the signatures of your parent and the witnesses.
So West Virginia needs both: two adult witnesses and a notary. This rule applies to documents signed, amended or adjusted on or after January 1, 2023; documents signed earlier under the prior rules "remain in full force and effect."
Who can't be a witness?
Relatives by blood or marriage, heirs under your parent's will, the attending physician and a few others can't witness. Under § 16-30-4(b), a witness may not be:
- the person who signed on your parent's behalf;
- "Related to the principal by blood or marriage";
- entitled to part of your parent's estate under their will (unless the witness didn't know they were a beneficiary);
- "Directly financially responsible for the principal's medical care";
- "The attending physician"; or
- the representative or successor representative your parent is naming.
A friend or neighbor who isn't an heir and meets the other conditions can, and the sample forms include a statement each witness signs confirming they qualify.
Who can't serve as the representative?
Under § 16-30-4(c), your parent can't name a treating health care provider, an employee of a treating provider who isn't related to them, an operator of a health care facility serving them, or an unrelated employee of that operator. Family members can serve. The sample form asks for one representative and one successor: "Please insert only one name."
Divorce changes things: "The grant of a final divorce decree shall act as an automatic revocation of the designation of the former spouse to act as a medical power of attorney representative or successor representative" (§ 16-30-18).
When does the representative start making decisions?
"The medical power of attorney representative or surrogate's authority shall commence upon a determination, made pursuant to section seven of this article, of the incapacity of the adult" (§ 16-30-6). Under § 16-30-7, that determination is made by "the attending physician, a physician, a qualified psychologist, a physician's assistant, or an advanced practice registered nurse who has personally examined the person," and is recorded in the medical record. Age alone isn't enough: a person "may not be presumed to be incapacitated merely by reason of advanced age or disability."
The representative's authority stops if your parent regains capacity and can start again later. Decisions must follow your parent's wishes, "including religious and moral beliefs," or their best interests when those wishes can't be learned (§ 16-30-9).
Where do you get a West Virginia form?
The statute prints three sample forms in § 16-30-4: a living will, a medical power of attorney and a combined medical power of attorney and living will. Your parent doesn't have to use them; each document "may, but need not, be in the following form." The sample medical power of attorney states: "THIS MEDICAL POWER OF ATTORNEY SHALL BECOME EFFECTIVE ONLY UPON MY INCAPACITY TO GIVE, WITHHOLD, OR WITHDRAW INFORMED CONSENT TO MY OWN MEDICAL CARE."
When your parent is admitted to a health care facility, the facility must tell them these forms exist and help complete them if they want, but admission can't depend on having one. It's up to your parent or their representative to let the doctors know the documents exist; a provider who receives one makes it part of the medical record.
What happens if your parent has no medical power of attorney?
The attending physician or advanced nurse practitioner picks a surrogate from a priority list set by statute. Under § 16-30-8, when your parent becomes incapacitated with no representative or guardian able and willing to serve, the attending physician or advanced nurse practitioner "shall select, in writing, a surrogate," from this order of priority:
- the spouse;
- adult children;
- parents;
- adult siblings;
- adult grandchildren;
- close friends;
- any other person or entity, including public agencies and public guardians.
When several people share a level, such as three adult children, the physician picks the one who "reasonably appears to be best qualified," looking at regular contact, demonstrated care and availability. The physician may even choose someone lower on the list if that person is best qualified, and must document why. "The surrogate is authorized to make health care decisions on behalf of the incapacitated person without a court order or judicial involvement." Someone on the list who disagrees can ask the circuit court to review the choice or a decision. A medical power of attorney lets your parent choose instead.
How do you revoke a West Virginia medical power of attorney or living will?
Under § 16-30-18, only your parent, or someone at their express direction, can revoke one, at any time, by:
- Destroying it, or having someone destroy it in their presence;
- A signed, dated written revocation, effective once it's delivered to the attending physician; or
- Telling a witness: a verbal statement of intent to revoke "in the presence of a witness eighteen years of age or older who signs and dates a writing confirming that such expression of intent was made," effective once communicated to the attending physician.
What about the POST form?
West Virginia's version of a POLST is the Portable Orders for Scope of Treatment, or POST, form. It's "a standardized form containing orders by a qualified physician, an advanced practice registered nurse, or a physician assistant that details a person's life-sustaining wishes" (§ 16-30-3). Under § 16-30-25, it "shall be bright pink in color to facilitate recognition by emergency medical services personnel and other health care providers," and it's signed by the clinician and by your parent or their representative. It's a medical order rather than an advance directive, and if it conflicts with your parent's own expressed directives, "the person's expressed directives shall be followed" (§ 16-30-5).
Frequently asked questions
Does a medical power of attorney need to be notarized in West Virginia?
Yes. Under W. Va. Code § 16-30-4, a medical power of attorney, living will or combined form must be signed in front of two adult witnesses, and the witnesses' signatures and attestations must be acknowledged before a notary. That's stricter than a financial power of attorney in West Virginia, which needs a notary but, in the sections we read, no witnesses.
Can a family member witness a medical power of attorney in West Virginia?
No. A witness can't be related to your parent by blood or marriage, entitled to part of their estate under a will, financially responsible for their medical care, their attending physician, or the representative being named. Friends or neighbors who aren't heirs can witness. A family member can still be the representative.
Where can I get a West Virginia medical power of attorney form?
The statute itself, W. Va. Code § 16-30-4, prints sample forms for a living will, a medical power of attorney and a combined document. They're optional; another form works if it meets the signing rules. Health care facilities must tell patients the forms exist at admission and help complete them on request.
Who makes medical decisions in West Virginia if there's no medical power of attorney?
A surrogate chosen in writing by the attending physician or advanced nurse practitioner. Under § 16-30-8, the order runs from the spouse to adult children, parents, adult siblings, adult grandchildren and close friends. Within a level, the physician picks the best-qualified person, and can pick someone lower on the list if better qualified.
Is a medical power of attorney from another state valid in West Virginia?
Yes, if it was validly signed. Under § 16-30-21, a living will, medical power of attorney or similar directive signed in another state is validly executed in West Virginia if it complied with West Virginia law or with the law of the state where it was signed. If your parent splits time between states, an attorney can confirm what covers both.
Can my parent change their mind after signing?
Yes. Your parent can revoke at any time by destroying the document, by a signed and dated written revocation delivered to the attending physician, or by telling an adult witness who signs and dates a confirming writing, communicated to the physician. A final divorce decree automatically revokes a former spouse's appointment.
Getting started
A medical power of attorney only helps if it's signed while your parent can sign it, with two qualified witnesses and a notary, and if the doctors know it exists. 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
- W. Va. Code Chapter 16, Article 30, West Virginia Health Care Decisions Act: definitions (§ 16-30-3), signing, witnesses, representatives and sample forms (§ 16-30-4), conflicts (§ 16-30-5), authority (§ 16-30-6), incapacity (§ 16-30-7), surrogates (§ 16-30-8), decision standards (§ 16-30-9), revocation (§ 16-30-18), out-of-state documents (§ 16-30-21) and the POST form (§ 16-30-25).
- W. Va. Code § 16-30-4: the execution rules and the statutory sample forms.
- W. Va. Code § 16-30-8: selection of a health care surrogate.
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