HEALTH CARE POWER OF ATTORNEY

AND ADVANCE MEDICAL DIRECTIVE

(Commonwealth of Virginia)

[// GUIDANCE: This template combines (i) a health-care power of attorney appointing an Agent to make medical decisions and (ii) an advance medical directive stating end-of-life wishes, as authorized under Va. Code Ann. §§ 54.1-2981 et seq. All bracketed items must be customized before execution.]

TABLE OF CONTENTS

1. Document Header
2. Article I. Definitions
3. Article II. Operative Provisions
    3.1 Appointment & Grant of Authority
    3.2 Scope of Authority
    3.3 HIPAA Authorization
    3.4 End-of-Life Directions
    3.5 Organ, Tissue & Anatomical Gifts
    3.6 Mental-Health Treatment Decisions
4. Article III. Representations & Warranties
5. Article IV. Covenants & Restrictions
6. Article V. Default & Remedies
7. Article VI. Risk Allocation
8. Article VII. Dispute Resolution
9. Article VIII. General Provisions
10. Execution Block

DOCUMENT HEADER

This Health Care Power of Attorney and Advance Medical Directive (this “Directive”) is made and entered into as of [EFFECTIVE DATE] (the “Effective Date”) by [FULL LEGAL NAME OF PRINCIPAL], residing at [ADDRESS] (the “Principal”), pursuant to and in conformity with the Virginia Health Care Decisions Act, Va. Code Ann. §§ 54.1-2981 et seq., and other applicable laws.

The Principal desires to appoint an agent to make health-care decisions on the Principal’s behalf and to record the Principal’s advance instructions regarding end-of-life care.

ARTICLE I. DEFINITIONS

For purposes of this Directive, capitalized terms have the meanings set forth below (alphabetically arranged). Cross-references are to Articles and Sections of this Directive.

“Act” means the Virginia Health Care Decisions Act, Va. Code Ann. §§ 54.1-2981 et seq.

“Advance Directive” has the meaning given in § 54.1-2982 of the Act.

“Agent” means the individual designated in Section 2.1(a) to act for the Principal; if that individual is unable or unwilling to serve, the “Alternate Agent(s)” designated in Section 2.1(b) shall act in the order named.

“Health-Care Decision” means any consent, refusal of consent, or withdrawal of consent to health-care treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, including 45 C.F.R. § 164.508.

“Life-Prolonging Procedure” includes artificial ventilation, cardiopulmonary resuscitation, dialysis, antibiotics, surgery, and artificially administered nutrition and hydration, as further described in Section 2.4.

“Good Faith” means honesty in fact and the observance of reasonable health-care standards prevailing in the community at the time of the decision.

[Additional defined terms may be inserted as needed.]

ARTICLE II. OPERATIVE PROVISIONS

Section 2.1 Appointment & Grant of Authority

(a) Appointment. The Principal hereby appoints [PRIMARY AGENT NAME], whose address is [ADDRESS], and whose telephone number is [PHONE], as the Principal’s true and lawful health-care agent (the “Agent”).

(b) Alternate Agent(s). If the Agent named above is unable, unwilling, or not reasonably available to act, the following shall serve successively (each an “Alternate Agent”):
1. [1ST ALTERNATE AGENT NAME & INFO]
2. [2ND ALTERNATE AGENT NAME & INFO]

(c) General Grant. The Agent is authorized to make any and all Health-Care Decisions for the Principal that the Principal could make personally, subject to the limitations expressly set forth in this Directive and the Act.

[// GUIDANCE: Va. Code § 54.1-2984(B) allows broad authority unless limited.]

Section 2.2 Scope of Authority

Without limiting the generality of Section 2.1, the Agent may:

1. Consent to, refuse, or withdraw consent to any care, treatment, service, or procedure, including pain management and palliative care.
2. Choose health-care providers and institutions.
3. Seek and review medical records and disclose them to third parties as necessary.
4. Authorize admission to or discharge from hospitals, nursing homes, assisted-living facilities, or hospice programs.
5. Execute waivers, releases, or other documents required to implement a decision, including surgery consents.
6. Authorize autopsy and direct disposition of remains, subject to Section 2.5.

Section 2.3 HIPAA Authorization

(a) Full Release. Pursuant to 45 C.F.R. § 164.508(c), the Principal authorizes any covered entity to disclose to the Agent any protected health information (“PHI”) necessary for the Agent to make informed decisions or exercise the powers granted herein.

(b) Scope. The authorization applies to all records, including those relating to mental health, substance use disorder, HIV/AIDS status, and genetic testing, to the extent permitted by law.

(c) Expiration. This HIPAA authorization shall not expire until the later of (i) the Principal’s death and (ii) such time as all matters governed by this Directive are fully resolved.

[// GUIDANCE: Covered entities may insist on their own HIPAA forms; attach one if required.]

Section 2.4 End-of-Life Directions

The Principal’s intent regarding Life-Prolonging Procedures is as follows (check or complete applicable statement):

1. ☐ If at any time my attending physician certifies that I have a terminal condition and that the application of Life-Prolonging Procedures would only artificially prolong the dying process, I direct that such procedures be withheld or withdrawn and that I be permitted to die naturally.
2. ☐ If I am in a persistent vegetative state, I direct that Life-Prolonging Procedures be (check one): ☐ Withheld/Withdrawn  ☐ Continued.
3. ☐ I request the administration of artificial nutrition and hydration even if other Life-Prolonging Procedures are withheld.
4. ☐ Pain Relief. I request appropriate medication to relieve pain or distress, even if it may hasten my death.

[// GUIDANCE: Va. Code §§ 54.1-2983 & -2984(C) permit explicit end-of-life instructions. Customize carefully.]

Section 2.5 Organ, Tissue & Anatomical Gifts

(a) Authorization. The Principal (check one):
 ☐ Authorizes  ☐ Does NOT authorize
the Agent to make anatomical gifts of all or any part of the Principal’s body for transplant, therapy, research, or education under Va. Code Ann. § 32.1-291.5.

(b) Priority. Any authorization herein is subject to contrary indications in a separate donor card or driver’s-license designation.

Section 2.6 Mental-Health Treatment Decisions

Unless expressly limited herein, the Agent may consent to or refuse psychotropic medication, electroconvulsive treatment, admission to psychiatric facilities, and other mental-health interventions consistent with this Directive and applicable law.

ARTICLE III. REPRESENTATIONS & WARRANTIES

3.1 Principal’s Capacity. The Principal represents that the Principal is at least eighteen (18) years old, of sound mind, and executing this Directive voluntarily.

3.2 No Conflicts. Execution of this Directive does not violate any prior court order or contractual obligation.

3.3 Reliance by Third Parties. Third parties may rely on a photocopy or electronic copy of this Directive and the Agent’s representations as to the continued effectiveness hereof.

ARTICLE IV. COVENANTS & RESTRICTIONS

4.1 Agent’s Fiduciary Duties. The Agent shall:
(a) Act in Good Faith and in the Principal’s best interests;
(b) Follow the Principal’s expressed wishes and, if unknown, the Principal’s values;
(c) Keep reasonably detailed records of decisions;
(d) Avoid conflicts of interest; and
(e) Consult with medical professionals as appropriate.

4.2 Delegation Prohibited. The Agent may not delegate authority under this Directive, except to an Alternate Agent expressly named herein.

4.3 Compliance with Law. All actions taken pursuant to this Directive shall comply with the Act and other applicable federal and state laws.

ARTICLE V. DEFAULT & REMEDIES

5.1 Events of Default. An Agent shall be deemed in default upon:
(a) A judicial determination of incapacity, abuse, neglect, or exploitation;
(b) Resignation without acceptance by an Alternate Agent;
(c) Material breach of fiduciary duty under Section 4.1.

5.2 Remedies.
(a) Removal. Any interested person may petition the appropriate Virginia circuit court sitting in probate (the “Court”) to remove an Agent in default and appoint a successor.
(b) Injunctive Relief. The Court may issue temporary or permanent injunctive relief to enforce or prevent violation of this Directive.
(c) Attorneys’ Fees. The Court may award reasonable attorneys’ fees and costs to a prevailing party acting in Good Faith.

[// GUIDANCE: The Act allows court involvement to resolve disputes (§ 54.1-2984.2).]

ARTICLE VI. RISK ALLOCATION

6.1 Indemnification. The Principal indemnifies and holds harmless the Agent (and any health-care provider relying on the Agent’s instructions) from any civil or criminal liability arising from Good-Faith actions or omissions within the scope of this Directive and the Act.

6.2 Limitation of Liability. The Agent shall not be liable for monetary damages except for willful misconduct, gross negligence, or bad faith.

6.3 Insurance. Health-care providers are expected to maintain their own professional liability insurance; no separate insurance obligation is imposed on the Agent.

6.4 Force Majeure. Neither the Principal nor the Agent shall be liable for failure to carry out directives where prevented by war, riot, pandemic, natural disaster, or legal prohibition.

ARTICLE VII. DISPUTE RESOLUTION

7.1 Governing Law. This Directive shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia (the “Governing Law”), without giving effect to conflict-of-laws principles.

7.2 Forum Selection. Any action or proceeding arising under or relating to this Directive shall be brought exclusively in the state probate division of the Circuit Court having jurisdiction over the Principal’s domicile (the “Forum Court”).

7.3 Arbitration. Arbitration is expressly disclaimed and shall not be required.

7.4 Jury Waiver. No waiver of the right to jury trial is made or required.

7.5 Injunctive Relief. The Forum Court shall retain authority to issue emergency or permanent injunctive relief to enforce this Directive.

ARTICLE VIII. GENERAL PROVISIONS

8.1 Amendment & Revocation. The Principal may amend or revoke this Directive at any time by (i) executing a subsequent written directive, (ii) physically canceling or destroying this document, or (iii) any other act evidencing intent to revoke, as permitted by § 54.1-2985.

8.2 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force, and the invalid provision shall be reformed to the minimum extent necessary to reflect the Principal’s intent.

8.3 Integration. This Directive constitutes the entire advance directive of the Principal and supersedes all prior inconsistent documents, except any separate durable power of attorney for financial matters, which shall remain unaffected.

8.4 Copies & Electronic Signatures. A copy, facsimile, or electronically signed version of this Directive shall have the same effect as an original.

8.5 Successors & Assigns. The rights and powers granted to the Agent shall inure to the benefit of, and be binding upon, the Agent’s successors and permitted assigns.

8.6 Headings. Headings are for convenience only and do not affect interpretation.

EXECUTION BLOCK

IN WITNESS WHEREOF, the Principal has executed this Directive as of the Effective Date first written above.

A. PRINCIPAL

[PRINCIPAL FULL LEGAL NAME]
Date: ________

B. OPTION 1 – NOTARIZATION (Satisfies Va. Code § 54.1-2983)

Commonwealth of Virginia
County/City of ______, to-wit:

The foregoing instrument was acknowledged before me this _ day of _, 20____ by [PRINCIPAL NAME].

Notary Public

My Commission Expires: ____
Notary Registration No.: ___

C. OPTION 2 – TWO ADULT WITNESSES (Alternative to Notarization)

We, the undersigned witnesses, declare that the Principal signed and executed this Directive in our presence and that the Principal appears to be of sound mind and under no duress, fraud, or undue influence. We are not the Agent or Alternate Agent and are at least eighteen (18) years of age.

[// GUIDANCE: Only one of the two formalities— notarization OR two witnesses— is required under § 54.1-2983(A), but many practitioners obtain both for additional evidentiary strength.]

SCHEDULE A – SPECIFIC LIMITATIONS (Optional)

[Insert any express limitations on the Agent’s authority, e.g., religious directives, refusal of certain treatments, etc. If none, state “None.”]

SCHEDULE B – HIPAA RELEASE FORM (Optional)

[Attach provider-specific HIPAA release if required.]

[// GUIDANCE: Counsel should advise the client to distribute executed copies to the Agent, Alternate Agents, primary care physician, and relevant health-care facilities, and to upload the Directive to any state advance-directive registry if available.]