Mutual Wills or Last Will and Testaments for Man and Woman living together, not Married with Minor Children
General Information:
A Living Will is a written, witnessed advance health care directive which deal with the withholding or withdrawing of life support systems. 16-30-3
A Medical Power of Attorney is a principal's appointment of another individual, who must be at least 18 years old, to make health care decisions for the principal. 16-30-3
Pursuant to the West Virginia Health Care Decisions Act, an individual may execute a Living will and/or a Medical Power of Attorney. There are statutory forms provided for each of these documents. Use of statutory forms is not required. The requirements for execution and revocation of both of these documents are the same. 16-30-4
Execution Requirements (16-30-4):
Any competent adult may at any time execute a living will or medical power of attorney.
A living will or medical power of attorney must be:
(1) In writing;
(2) executed by the principal or by another person in the principal's presence at the principal's express direction if the principal is physically unable to do so;
(3) dated;
(4) signed in the presence of two or more witnesses at least eighteen years of age; and
(5) signed and attested by such witnesses whose signatures and attestations shall be acknowledged before a notary public.
A witness may not be:
(1) the person who signed the living will or medical power of attorney on behalf of and at the direction of the principal;
(2) related to the principal by blood or marriage;
(3) entitled to any portion of the estate of the principal under any will of the principal or codicil thereto (the validity of the living will or medical power of attorney is not affected when a witness at the time of witnessing the living will or medical power of attorney was unaware of being a named beneficiary of the principal's will);
(4) directly financially responsible for the principal's medical care;
(5) the principal's attending physician; or
(6) the principal's actual or potential medical power of attorney representative.
The following may not serve as a medical power of attorney representative or successor medical power of attorney representative:
(1) A treating health care provider of the principal;
(2) an employee of a treating health care provider not related to the principal;
(3) an operator of a health care facility serving the principal; or
(4) an employee of an operator of a health care facility not related to the principal.
It is the responsibility of the principal or his or her representative to provide notification to the principal's attending physician and other health care providers of the existence of the living will or medical power of attorney and of any revocation of the living will or medical power of attorney.
Attending physicians and other health care providers must make the living will or the medical power of attorney part of the principal's medical records.
Should any of the specific directions of a living will or medical power of attorney be held to be invalid, the invalid provision(s) shall not affect the other directions or provisions of the living will or medical power of attorney, the provisions of a living will and a medical power of attorney are severable.
Revocation Requirements (16-30-18):
A living will or medical power of attorney may be revoked at any time only by the principal or at the express direction of the principal. Revocation may be by any of the following methods:
(1) by the living will or medical power of attorney being destroyed by the principal or by some person in the principal's presence and at the principal's direction;
(2) by a written revocation of the living will or medical power of attorney signed and dated by the principal or person acting at the direction of the principal; or by a verbal expression of the intent to revoke the living will or medical power of attorney in the presence of a witness eighteen years of age or older who signs and dates a writing confirming that such expression of intent was made.
A written revocation becomes effective upon delivery of a written revocation to the attending physician by the principal or by a person acting on behalf of the principal. The attending physician must record in the principal's medical record the time and date when notification of the written revocation is received.
A verbal revocation shall become effective only upon communication of the revocation to the attending physician by the principal or by a person acting on behalf of the principal. The attending physician must record in the principal's medical record the time and date when notification of the revocation is received.
There is no criminal or civil liability on the part of any person for failure to act upon a revocation unless that person has actual knowledge of the revocation.
The grant of a final divorce decree shall act as an automatic revocation of the designation of the former spouse to act as a medical power of attorney representative or successor representative.
ANATOMICAL GIFTS
Making An Anatomical Gift (16-19-2):
An individual who is at least eighteen years of age may make an anatomical gift for any of the allowed statutory purposes; limit an anatomical gift to one or more of those statutory purposes; or refuse to make an anatomical gift.
An anatomical gift may be made only by a document of gift signed by the donor. If the donor is unable to sign a document of gift and intends to make an anatomical gift, the document of gift must be signed by another individual and by two witnesses, all of whom have signed at the direction and in the presence of the donor and of each other, and state that it has been so signed.
If a document of gift is attached to a donor's motor vehicle operator's or chauffeur's license, the document of gift must comply with the statute. If a donor's intent to make an anatomical gift is imprinted on the donor's motor vehicle operator's or chauffeur's license, it is a valid indication of the donor's intent to make an anatomical gift. Revocation, suspension, expiration, or cancellation of the license does not invalidate the anatomical gift.
A document of gift may designate a particular physician or surgeon to carry out the appropriate procedures. In the absence of a designation, or if the designee is not available, the donee or other person authorized to accept the anatomical gift may employ or authorize any physician, surgeon or technician to carry out the appropriate procedures.
An anatomical gift may also be made by will. Such a gift takes effect upon certification of death of the testator. The will does not have to be probated. If the will is declared invalid for testamentary purposes, the validity of the anatomical gift is unaffected.
Amending or evoking an anatomical gift (16-19-2):
An anatomical gift not made by will may be amended or revoked by a signed statement; an oral statement made in the presence of two individuals; any form of communication during a terminal illness or injury addressed to a physician, surgeon or physician assistant; or the delivery of a signed statement to a specified donee to whom a document of gift had been delivered.
An anatomical gift made by will may be amended or revoked in the manner provided for amendment or revocation of wills, or as statutorily provided for the amendment of revocation of a gift not made by will.
An anatomical gift that is not revoked by the donor before death is irrevocable and does not require the consent or concurrence of any person after the donor's death.
An individual may refuse to make an anatomical gift by a writing signed in the same manner as a document of gift; any other writing used to identify the individual as refusing to make an anatomical gift; or, if the individual is suffering from a terminal illness or injury, the refusal may be an oral statement or other form of communication.
Donees Of And Purposes For Anatomical Gifts (16-19-6)
Anatomical gifts may be made to the following persons and entities for the purposes stated:
(1) The university of West Virginia system board of trustees for the scientific purposes of educational institutions for which it may receive or requisition bodies;
(2) A hospital, physician, surgeon or procurement organization, for transplantation, therapy, medical or dental education, research or advancement of medical or dental science;
(3) An accredited medical or dental school, college or university for education, research, advancement of medical or dental science; or
(4) A designated individual for transplantation or therapy needed by that individual.
An anatomical gift may be made with or without designating a specific donee. If there is no specific donee named, or if a specific donee is not available or rejects an anatomical gift, then the gift may be accepted by any hospital.
