The Virginia Advance Medical Directive or “Living Will”

Virginia law includes a statute devoted to the Advance Medical Directive.  An advance medical directive allows a person to “address any and all forms of health care in the event the declarant

is later determined to be incapable of making an informed decision.”  Va. Code Ann.  § 54.1-2893.  Here is a link the the portion of the statute that provides definitions for various key terms: Va. Code Ann § 54.1-2982.  Several of the  changes created by the legislative amendments to the statute effective as of July 1, 2009 are noted for expanding the scope of several key terms.  These include the definition of “health care” and “incapable of making an informed decision”.

In general, an advance medical directive allows  a person to:

  1. direct the withholding or withdrawal of certain life-prolonging procedures;
  2. specify what sort of life pro-longing procedures a person would or would not want in the event of terminal illness;
  3. specify what sort of services a person would or would not want for the purpose of preventing, alleviating, curing, or healing an illness, injury, or physical disability in the event the person cannot make those decisions for themself;
  4. designate an agent to make health care decision on their  behalf if the person is determined to be  “incapable of making an informed decision”  (See definitions in Code);
  5. designate a person who may access or receive health records in accordance withHIPAA (“Health Insurance Portability and Accountability Act”) requirements, usually the health care proxy.

One of the great things about an advance directive is that a person may be as specific or general as the law will allow with regards to particular procedures, treatments, etc.

If you do not want to make specific health care decisions in advance then a durable health care power of attorney may be used to designate an agent to make health care decisions on your behalf should you be unable to do so.  A durable health care power of attorney grants the agent with significant decision-making authority.  However, the agent is expected to follow the person’s desires and preferences as stated in an advance directive or otherwise known to the agent.  If the agent cannot determine what health care decision the person would have made then their decision is to be based on what they determine is in the person’s best interests.  See  Va. Code Ann. § 54.1-2984 for example. It is even possible to designate more than one agent to make medical decisions on your behalf if you would rather have certain decisions made by a ‘committee’ of friends, relatives, or others.

One reasonable concern many  have about advance directives is how it is determined that they are “incapable of making an informed decision” before a designated agent is allowed to make decisions on their behalf.  Every adult is presumed to be capable of making an informed decision.  Va. Code Ann. § 54.1-2983.2.  Also, a person may be deemed incapable of making any health care decision, a particular health care decision, or a subset of health care decisions.  Taking action pursuant to an advance directive  may only occur when the person’s physician provides a written certification, as well as written certification from another physician or licensed clinical psychologist based upon personal examination, that the person is incapable of making an informed decision.  In addition, these certifications must be renewed no less frequently than every 180 days while the need for health care continues.  A person may resume making their own health care decisions at any time if a single physician determines that they are capable of doing so and states this determination in writing.  Va. Code Ann. § 54.1-2983.2.

Please note that effective July 1, 2009 several important changes were made to Virginia’s Advance Medical Directive statute.  If you previously executed an advance medical directive you may want to review the changes in the law to see if a new directive is desirable or needed.  Please contact our office if you would like a consultation on an existing or new advance directive.