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Jenkins Fenstermaker, PLLC

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Huntington, WV 25701-2225

Phone (304) 523-2100

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By Anna Melissa Price Of Jenkins Fenstermaker, PLLC on 11/20/2017
WV Living Will: Your Life, Your Decisions

Lawyers all over the country, as well as physicians, omnibus men and others in the legal and medical professions, spend a great deal of time trying to convince us all to have a “living will.” Some of us understand what a living will is, while others have vague thoughts about the living will and what can be accomplished by creating a living will. But what is a WV living will and do you really need one?

What Is a WV Living Will

The WV living will is a form of advance health care directive, which explains your medical care wishes to your doctors. West Virginia Code section 160-30-3(h) defines the scope of the life-prolonging medical procedures you wish to receive in the event you become incapacitated.

Unlike a medical power of attorney, the WV living will becomes effective only when the person making it has a terminal illness or lapses into a persistent vegetative state. The medical power of attorney, on the other hand, names someone (in WV a surrogate decision maker) to act on behalf of the person signing the power of attorney (the principal). All that is necessary for the medical power of attorney to become effective is that the principal becomes unable to make health care decisions for himself or herself.

Why Do I Need a Living Will

Consider the following situation. Anne is a 30-year-old in good health. On the way to her job in Charleston, Anne is involved in a devastating automobile accident on Interstate 64 in Teays Valley. Two days after the accident, Anne slips into a persistent vegetative state. Her physicians hold no hope for Anne’s recovery.

Anne does not wish to receive life-sustaining care; however, she has never told her family or doctors about her wishes. Shortly before the accident, she signed a living will directing that her attending physicians withhold all medical procedures that would serve only to prolong her life while adding nothing to her recovery. She had given a copy of her WV living will to her primary care physician as well as her sister.

In this example, Anne’s wishes will likely be respected, and she will receive only the care she wishes. Anne has had the foresight to make her wishes known by executing her living will. She is allowed to refuse medical treatment she feels would be intrusive and of no value—Anne made her own decision in advance. But what would happen if Anne had no living will or other advance health care directive?

The Results Without a WV Living Will

If Anne had no living will, her attending physician would be responsible for choosing which statutorily designated person would make her decisions for her. In such cases, the West Virginia Code provides that the incapacitated person’s physician must choose a decision maker for the patient from the following list:

  • The person’s spouse;

  • The person’s adult children;

  • The person’s parents;

  • The person’s adult siblings;

  • The person’s adult grandchildren;

  • Any close friend; or

  • Any other person or entity, including public agencies, such as the West Virginia Department of Health and Human Services

In Anne’s case, once Anne’s attending physician selected a surrogate from the foregoing list, the surrogate, not Anne, would make decisions about Anne’s life-sustaining treatment.

Your wishes about how you will be treated while terminally ill, or in the event you were to fall into a persistent vegetative state, are intensely personal and should be respected. You can ensure those wishes are respected only if you take the time to protect yourself with a WV living will. Please contact me, Anna M. Price, at Jenkins Fenstermaker, PLLC by calling (866) 617-4736 or by completing our firm’s Contact form. I can help you make sure your wishes are respected and would be happy to discuss any of your other estate planning needs.