DURABLE HEALTH CARE POWER OF ATTORNEY

(Advance Directive for Health Care Decisions – West Virginia)

[// GUIDANCE: This template is drafted to comply with the West Virginia Health Care Decisions Act, W. Va. Code § 16-30-1 et seq., and is intended for use by licensed attorneys. All bracketed text must be customized, and any optional provisions either completed or removed before execution.]

TABLE OF CONTENTS

I. Document Header
II. Definitions
III. Operative Provisions
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block

I. DOCUMENT HEADER

1. Title. Durable Health Care Power of Attorney (the “Instrument”).
2. Parties.
   a. “[Principal]” – [FULL LEGAL NAME], residing at [ADDRESS].
   b. “[Agent]” – [FULL LEGAL NAME], residing at [ADDRESS].
   c. “[First Alternate Agent]” – [FULL LEGAL NAME], residing at [ADDRESS].
   d. “[Second Alternate Agent]” – [FULL LEGAL NAME], residing at [ADDRESS].
3. Effective Date. This Instrument is effective as of [EFFECTIVE DATE] (the “Effective Date”).
4. Governing Law. This Instrument is governed by the West Virginia Health Care Decisions Act, W. Va. Code § 16-30-1 et seq. (the “Act”) and other applicable West Virginia law (“State Health-Care Law”).
5. Recitals.
   A. The Principal desires to appoint an Agent to make health-care decisions if the Principal is determined to lack capacity, or as otherwise directed herein.
   B. The Agent is willing to serve in accordance with the terms of this Instrument.
   C. Execution of this Instrument constitutes an “advance directive” within the meaning of the Act.

II. DEFINITIONS

For purposes of this Instrument, capitalized terms have the meanings set forth below. Any term used but not defined herein shall have the meaning set forth in the Act.

“Act” – The West Virginia Health Care Decisions Act, W. Va. Code § 16-30-1 et seq.

“Advance Directive” – A written instruction recognized under the Act relating to the provision of health-care when the Principal lacks capacity, including this Instrument.

“Agent” – The individual designated in Section I.2(b) (or any Alternate Agent acting pursuant to Section VI.1) authorized to make health-care decisions for the Principal.

“Capacity” – An individual’s ability to understand the nature and consequences of a health-care decision and to communicate that decision, as determined under the Act.

“End-of-Life Decision” – Any decision regarding life-sustaining treatment, artificial nutrition and hydration, comfort care, or similar measures made when the Principal is in a terminal condition or persistent vegetative state.

“Good Faith” – Honesty in fact in the conduct or transaction concerned.

“HIPAA” – The Health Insurance Portability and Accountability Act of 1996, and its implementing regulations at 45 C.F.R. Parts 160–164.

“Incapacity” – Lack of Capacity as certified pursuant to the Act.

“PHI” – Protected Health Information, as defined in HIPAA.

“State Probate Court” – The Circuit Court sitting in its probate jurisdiction for the county in which the Principal resides or is hospitalized.

III. OPERATIVE PROVISIONS

3.1 Grant of Authority

The Principal hereby appoints the Agent to make any and all health-care decisions on the Principal’s behalf, including, without limitation, those enumerated in Section 3.2, subject to the limitations and instructions herein.

3.2 Scope of Authority

The Agent may:
a. Consent to, refuse, or withdraw any medical or surgical procedure, test, treatment, or intervention.
b. Authorize admission to or discharge from any health-care facility.
c. Employ and discharge health-care providers.
d. Access, review, and disclose PHI and medical records.
e. Make End-of-Life Decisions consistent with Section 3.4.
f. Take any lawful action to effectuate the Principal’s wishes, including the execution of waivers, releases, and financial arrangements ancillary to health-care.

[// GUIDANCE: Add or limit authority as required by the Principal.]

3.3 Effectiveness & Duration

a. Triggers. This Instrument becomes effective (check one):
☐ Upon execution.
☐ Only upon a determination of Incapacity under the Act.
b. Term. Authority survives the Principal’s Incapacity and remains in effect until revoked pursuant to Section 9.1 or terminated by operation of law.
c. Durable Nature. This Instrument is intended to be durable pursuant to W. Va. Code § 16-30-6.

3.4 End-of-Life Provisions

a. Statement of Intent. The Principal’s End-of-Life Decisions are set forth below and shall guide the Agent and health-care providers:
1. Life-Sustaining Treatment: [☐ CONTINUE ☐ WITHHOLD/ WITHDRAW]
2. Artificial Nutrition & Hydration: [☐ CONTINUE ☐ WITHHOLD/ WITHDRAW]
3. Pain Management: Provide medication to alleviate pain even if it may hasten death.
b. Mandatory Compliance. Health-care providers shall comply with these provisions unless legally prohibited.
c. Clarification. In the event of ambiguity, the Agent may interpret the Principal’s wishes in Good Faith.

3.5 HIPAA Authorization

The Principal authorizes any covered entity under HIPAA to disclose PHI to the Agent to the same extent as the Principal, and authorizes the Agent to execute further HIPAA-compliant releases. This authorization is intended to be valid for the maximum period allowed by law and shall survive the Principal’s death to obtain and disclose PHI relating to post-mortem matters (e.g., autopsy, organ donation).

3.6 Organ Donation (Optional)

[☐ The Principal hereby donates any needed organs or tissue for transplantation, therapy, research, or education, subject to applicable law.]

3.7 Nomination of Guardian or Conservator

If a guardian or conservator of the Principal’s person is to be appointed, the Principal nominates the Agent (or, if unavailable, the First Alternate Agent) to serve in that capacity.

3.8 Third-Party Reliance

Third parties may rely conclusively on the Agent’s authority absent actual knowledge of revocation or termination.

3.9 Revocation

The Principal may revoke this Instrument at any time by a signed writing or by personally informing the attending physician or health-care provider. Revocation is effective upon communication pursuant to the Act.

IV. REPRESENTATIONS & WARRANTIES

4.1 Principal. The Principal represents that:
a. The Principal is at least eighteen (18) years of age and of sound mind.
b. Execution of this Instrument is voluntary and free from duress or undue influence.

4.2 Agent. The Agent represents that the Agent:
a. Is willing and able to serve.
b. Will act in Good Faith and in accordance with the Principal’s known wishes and the Act.

4.3 Accuracy. All information provided herein is true, complete, and correct to the best knowledge of the signatories as of the Effective Date.

V. COVENANTS & RESTRICTIONS

5.1 Standard of Conduct. The Agent shall:
a. Act in Good Faith and consistent with the Principal’s expressed wishes.
b. Consult with health-care providers and, when feasible, with family members.
c. Keep reasonable records of material actions and decisions.

5.2 Limitations. The Agent shall not:
a. Authorize euthanasia or assisted suicide.
b. Make any decision that is prohibited by the Act or other applicable law.

5.3 Compliance. The Agent shall comply with all obligations under HIPAA, State Health-Care Law, and any applicable institutional policies.

5.4 Notice Obligations. The Agent shall promptly inform successor agents and health-care providers of any inability or refusal to serve.

VI. DEFAULT & REMEDIES

6.1 Events of Default. The following constitute “Events of Default”:
a. Agent’s resignation, refusal, Incapacity, or death.
b. Judicial determination of the Agent’s misconduct or breach of fiduciary duty.
c. Conflict of interest that materially impairs the Agent’s ability to act.

6.2 Consequences. Upon an Event of Default, authority passes in the following order:
1. First Alternate Agent
2. Second Alternate Agent
3. Court-appointed guardian or person authorized under the Act.

6.3 Injunctive Relief. Any interested person under the Act may petition the State Probate Court for injunctive relief to enforce the Principal’s directives or to restrain unauthorized acts.

6.4 Attorneys’ Fees & Costs. The court may award reasonable attorneys’ fees and costs to the prevailing party in any action to enforce this Instrument.

VII. RISK ALLOCATION

7.1 Indemnification. The Principal agrees to indemnify and hold harmless the Agent from all claims, liabilities, and expenses arising out of health-care decisions made in Good Faith, except to the extent resulting from the Agent’s willful misconduct or gross negligence.

7.2 Limitation of Liability. The Agent shall not be liable for any act or omission undertaken in Good Faith pursuant to this Instrument and the Act.

7.3 Reliance Protection. Any health-care provider or third party that relies on the Agent’s apparent authority in Good Faith shall be indemnified by the Principal to the full extent permitted by law.

7.4 Insurance (Optional). [☐ The Agent may, at the Principal’s expense, obtain liability insurance covering actions taken under this Instrument.]

VIII. DISPUTE RESOLUTION

8.1 Governing Law. This Instrument is governed by State Health-Care Law without regard to conflicts-of-law principles.

8.2 Forum Selection. Exclusive jurisdiction and venue for any proceeding relating to this Instrument shall be the State Probate Court.

8.3 Arbitration. Arbitration is not available under this Instrument.

8.4 Jury Waiver. No party waives its right to a jury trial.

8.5 Injunctive Relief. Section 6.3 preserves the right to seek injunctive or other equitable relief.

IX. GENERAL PROVISIONS

9.1 Amendment & Revocation. The Principal may amend or revoke this Instrument in the manner prescribed by Section 3.9. No oral modification is valid.

9.2 Assignment & Delegation. The Agent may not delegate authority except as expressly provided herein or by court order.

9.3 Successors & Assigns. This Instrument binds and benefits the Principal’s heirs, executors, administrators, and permitted assigns.

9.4 Severability. If any provision is invalid or unenforceable, the remaining provisions shall remain in full force, and any invalid provision shall be reformed to the minimum extent necessary.

9.5 Integration. This Instrument constitutes the entire advance directive of the Principal and supersedes all prior inconsistent directives.

9.6 Counterparts. This Instrument may be executed in counterparts, each of which is deemed an original, but all of which constitute one and the same Instrument.

9.7 Electronic Signatures. Signatures transmitted via electronic means have the same force and effect as originals, to the fullest extent permitted by law.

X. EXECUTION BLOCK

10.1 Principal’s Signature

I, [PRINCIPAL NAME], have read this Durable Health Care Power of Attorney and understand its purpose and effect. I sign it willingly, as my free and voluntary act, on the date set forth below.

10.2 Agent’s Acceptance

I, [AGENT NAME], accept the designation as Agent and will act in Good Faith to carry out the Principal’s wishes.

[Repeat signature blocks for any Alternate Agents.]

10.3 Witness Attestation (choose ONE of Witness Attestation OR Notarization)

We declare that the Principal is personally known to us, appears to be of sound mind, and signed or acknowledged this Instrument in our presence without undue influence.

Witness Qualification Requirements (per W. Va. Code § 16-30-4):
• At least 18 years of age.
• Not related to the Principal by blood or marriage.
• Not entitled to any portion of the Principal’s estate.
• Not directly financially responsible for the Principal’s medical care.

10.4 Notary Acknowledgment (use only if NOT using witnesses)

State of West Virginia )
County of _______ )

On this _ day of _, 20_, before me, the undersigned Notary Public, personally appeared [PRINCIPAL NAME], proved to me on the basis of satisfactory evidence to be the person whose name is subscribed herein, and acknowledged that he or she executed the same for the purposes therein contained.

Notary Public
My Commission Expires: ____

[// GUIDANCE: File copies with the Principal’s primary physician, health-care proxy registry (if any), Agent, and relevant family members. Advise clients to carry a wallet card indicating existence of this Instrument.]