It is not pleasant to think about you or a loved one becoming so ill or disabled that making medical decisions is not possible, yet it is important to make plans so that you and your family maintain control over your health care choices. Fortunately, West Virginia law provides for people to appoint a medical durable power of attorney (POA) to make medical decisions on their behalf should they end up disabled. However, in doing so you want to make sure the appointment is valid.
According to West Virginia law, when someone signs a medical power of attorney, it should be performed before two or more witnesses. However, those witnesses could be disqualified for a number of reasons. If the witnesses are too young, if they are not at least eighteen years old, their signatures will not be valid.
State law also prohibits witnesses that are related to the person, also called the principal, who will be represented by a power of attorney. These relatives can be blood relatives, but they can also include the spouse of the principal or anyone on the spouse’s side of the family. The medical POA also cannot double as a witness, nor can a doctor that has current primary responsibility for giving the principal medical care.
State law also prohibits certain people from serving as a medical power of attorney. Generally, these people are employed as part of the medical profession where it concerns the principal, such as someone who is currently providing health care for the principal. People that work for a health care provider and are not related to the principal may be also excluded, as are individuals who work for a medical facility currently in service to the principal.
Additionally, you want to make sure you do not name a prohibited person as a successor to a medical power of attorney. It is a good idea not to name just one person in case that person dies or is otherwise unable to take on the duties. However, in choosing a possible successor, you must make certain the successor is just as qualified as your first choice to be a POA.
Should a court find your choice of power of attorney invalid, the court might appoint a person to make your medical decisions for you if you are disabled and no one else can speak for you. Ultimately, carefully choosing who can be your medical power of attorney and who witnesses the signing of the POA documents helps ensure that your power of attorney will not be ruled invalid at a later date.
This article is written to educate readers and is not intended as legal advice.