West Virginia Q and A

Ten commonly asked questions about PAD’s for West Virginia

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice.  The answers were accurate when written in December 2006.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes.  The West Virginia Health Care Decisions Act allows you to: (1) appoint an agent to make health care decisions for you in the event that you become unable to make those decisions yourself (known as making a “medical power of attorney”); and/or (2) create a “living will” in which you write instructions about how you would like your health care to proceed.  The statute covers all types of health care, which may include mental health care.  Although neither is mandatory, there are recommended forms for both the medical power of attorney and living will.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

Yes, in a “living will”.  You may use the living will form to state any directions or limitations on your mental health treatment for any future time when you may be unable to give those instructions.  If you do not wish to make choices about life sustaining treatment at the same time, you may leave that section blank.

3.  Does anyone have to approve my advance instructions at the time I make them?

No.  However, your living will must be signed by two adult witnesses in the presence of a notary.  The witnesses may not be relatives, beneficiaries of your estate or attending physician.  If you also appoint an agent, your agent cannot also act as a witness.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?

Yes, using the “medical power of attorney”.  The witness requirements for the medical power of attorney are the same as for a living will.  It is therefore a good idea to have the two forms notarized at the same time and kept together.  Note that in West Virginia, a “surrogate” will be appointed on your behalf if you become incompetent and have not appointed your own agent.  The medical power of attorney allows you to make your own choice in advance as to who that person should be.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes, subject to the exceptions discussed under question 9 below.  In general, if you are determined to be incompetent, your agent may make decisions about any health care issue that you could decide on if you were competent, including treatment refusals.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?

Your agent must exercise substituted judgment to the extent that he or she can do so, based on your advance instructions and/or on your preferences as known by the agent.  If it is not possible to make a decision in that way, your agent must make the decision in your best interests.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

No.  The West Virginia statute allows you to do one, the other, or both.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.  All that is required is that a mental health practitioner (doctor or “advanced nurse practitioner”) considers that you are unable to make your own treatment choices.  That determination must be recorded in your notes and reasons for the determination must be documented.  If you remain conscious, you must be informed of the determination.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Yes.  The statute says that a provider could decline to follow your medical power of attorney/living will if the “doctrine of medical necessity” applied; this usually means “in an emergency”.  Please note also that West Virginia’s involuntary treatment laws still apply: this means that if you were considered a danger to yourself or others, your documents might be overridden.

10.  How long does my PAD remain valid?

Your medical power of attorney is valid as long as you do not revoke it.  You may revoke it at any time by means of a witnessed written note or by telling your attending physician.  It is a good idea to review and update your medical power of attorney/living will regularly.