Default Health-Care Surrogate Priority in Virginia

At a glance

Requirements one by one

When the default route opens

Virginia § 54.1-2983.2(A) presumes adults capable. A finding may concern one decision, a set, or all health-care decisions; a diagnosis alone cannot establish incapacity. Under § 54.1-2983.2(B), the attending physician normally needs a written personal-examination certification and a capacity reviewer's written certification, repeated at least every 180 days while care continues. The second certification is excused for unconsciousness or profound impairment of consciousness from an acute condition.

Guardian or appointed agent

Virginia § 54.1-2986.1(A) begins, "If the declarant appoints an agent in an advance directive, that agent shall have" authority for decisions within the directive and puts that agent ahead of every person in the default list. Section 54.1-2986(A)(1) places a guardian first on that list but expressly says guardianship need not be obtained before a decision can be made through the list.

Family and partner order

Under § 54.1-2986(A)(2)–(6), a spouse with a filed but unfinished divorce action does not occupy the spouse class. The order then runs through adult children, parents, adult siblings, and other relatives in descending order of blood relationship. The physician can use a lower class only when unaware of an available, willing, capable person in a higher class.

Friend or other nonfamily person

Section 54.1-2986(A)(7) permits an adult with special care and concern who knows the patient's beliefs, values, and known care preferences. A facility patient care consulting committee, or if unavailable two physicians meeting the statute's independence tests, must determine eligibility and document its basis. An involved provider's director, employee, or agent cannot fill this position.

Decision within one class

If members of classes 3 through 7 tell the attending physician they disagree, § 54.1-2986(A) allows reliance on a majority of the reasonably available members of that class. That sentence does not set a voting rule for a guardian or spouse.

Decisions limited or excluded

The unrelated-adult route in § 54.1-2986(A)(7) excludes a proposal to withhold or withdraw a life-prolonging procedure. Section 54.1-2986(B) also protects written organ-donor intent from interference by anyone on the list. Virginia § 54.1-2986.2(A), (C), and (E) imposes separate conditions when the patient protests a decision or a decision maker's authority.

No surrogate or disputed authority

Under § 54.1-2985.1(A), any person may ask the circuit court to enjoin care that is not lawfully authorized. Subsection B preserves petitions for a court order for health care under other Virginia law. These court provisions do not themselves supply a new lower-priority clinician surrogate.

What trips people up

A patient's protest of the proposed care and protest of a particular person's authority have different effects under § 54.1-2986.2. For a person on the default list other than a guardian, a protest of that person's authority ends authority under this article. A protested care decision can proceed only within the narrow conditions in subsection C, including clinical and ethical documentation; withholding or withdrawing life-prolonging procedures is excluded.

HB548 would substantially rewrite the default ladder, but its Senate continuation means the proposed § 54.1-2993.13 is not the current rule.

Common questions

Does a close friend automatically outrank a distant relative? No. Section 54.1-2986(A) puts other blood relatives in class 6 and the qualifying unrelated adult in class 7.

Can one adult child decide when siblings disagree? Section 54.1-2986(A) permits the physician to rely on a majority of reasonably available adult children when same-class members report a disagreement. The statute does not turn one child's view into an automatic majority.

Must a family ask a court to appoint a guardian first? No. Section 54.1-2986(A)(1) expressly says that appointment is not required for a decision under its list.

Statutes and sources

• Va. Code Ann. §§ 54.1-2983.2, 54.1-2985.1, 54.1-2986, 54.1-2986.1, and 54.1-2986.2. Verbatim official text, source links, and access dates appear in the source fields above.