Default Health-Care Surrogate Priority in West Virginia

At a glance

Requirements one by one

When the default route opens

A personally examining attending physician, physician, qualified psychologist, physician assistant, or advanced practice registered nurse determines incapacity and records the basis, cause, nature, and expected duration when known (§ 16-30-7). Age, disability, mental illness, or intellectual disability alone does not establish incapacity. After reasonable inquiry for a medical-power-of-attorney representative or court-appointed guardian, the attending physician or advanced nurse practitioner selects a surrogate in writing if neither is authorized, capable, and willing to serve (§ 16-30-8(a)).

Care or setting covered

A health-care decision includes medical and surgical treatment, life-prolonging interventions, psychiatric treatment, nursing, hospitalization, treatment in a nursing home or other facility, and home health care (§ 16-30-3). A receiving facility may rely on a prior valid incapacity finding and surrogate selection until reassessment, then continue with the selected surrogate if incapacity remains (§ 16-30-13(a)). Home health and hospice may likewise rely on the prior finding and selection after discharge home (§ 16-30-13(b)).

Family and other eligible people

The inquiry order is spouse, adult children, parents, adult siblings, adult grandchildren, close friends, then another designated person or entity, including a public agency or guardian (§ 16-30-8(a)). A close friend is an adult who has shown significant care and concern, regular contact, knowledge of the person's life and beliefs, and willingness and ability to participate (§ 16-30-3).

Decision within one class

When multiple people share a priority level, the attending physician or advanced nurse practitioner selects the person who reasonably appears best qualified after reasonable inquiry. The criteria include ability to honor known wishes or best interests, regular contact, care and concern, and availability to visit and engage face-to-face with providers (§ 16-30-8(b)(1)). The clinician may select a lower-ranked person who appears best qualified but must record the reasons in the medical record (§ 16-30-8(b)(2)).

Who is available and eligible

A surrogate must be at least 18, reasonably available, capable of making health decisions, and selected under the act (§ 16-30-3). Treating health-care providers, certain unrelated treating-provider employees, facility owners, operators or administrators, and their certain unrelated employees may not serve (§ 16-30-8(i)). If a selected surrogate becomes unavailable, the clinician applies the selection rules again. A higher-ranked person who later becomes available may replace the selected surrogate unless the clinician finds the lower-ranked person best qualified (§ 16-30-8(g)–(h)).

Decisions limited or excluded

The surrogate follows the person's wishes, including religious and moral beliefs; if those wishes are not reasonably known or ascertainable, the surrogate uses best interests while considering known values (§ 16-30-9). A provider's statutory reliance on a selected surrogate requires reasonable inquiry establishing that no applicable agent, guardian, or directive governs, no known religious conflict exists, and the clinician has no actual notice of opposition (§ 16-30-8(d)). An objection by a ranked person to withholding or withdrawing a life-prolonging intervention must be recorded. The objector is told that the decision will be implemented in 72 hours unless the clinician receives an enjoining court order (§ 16-30-8(f)).

No surrogate or disputed authority

The selected surrogate acts without an initial court order (§ 16-30-8(c)). A ranked possible surrogate may challenge the selection or decision by seeking injunctive relief or review in the relevant circuit court or the Supreme Court of Appeals; the statute gives the selection a rebuttable presumption of validity (§ 16-30-8(e)). The objection procedure for a life-prolonging-intervention decision gives time to seek that order (§ 16-30-8(f)).

What trips people up

The priority order is the starting point, but § 16-30-8(b)(2) expressly permits a lower-ranked person when the clinician judges that person best qualified and documents why. The same standard can keep a selected lower-ranked person in place when someone higher ranked later becomes available (§ 16-30-8(h)).

Common questions

Do adult children vote to choose the surrogate?

The clinician selects one best-qualified person after reasonable inquiry into the statutory criteria when several candidates have the same rank (§ 16-30-8(b)(1)).

Does transfer to another facility automatically end the surrogate’s authority?

The receiving facility may rely on the earlier finding and selection until reassessment. If continued incapacity is found, it may keep relying on the same surrogate (§ 16-30-13(a)).

Statutes and sources

• W. Va. Code §§ 16-30-3, 16-30-7–9, 16-30-13 — definitions, incapacity finding, surrogate selection and review, decision standards, and transfers: https://code.wvlegislature.gov/email/16-30/ (accessed 2026-10-08). The statute entries above link the current official sections.