West Virginia Health Care Surrogate: How the Priority List Works

The Safety Net You Did Not Set Up

If a West Virginia adult becomes incapacitated and has no authorized, capable, and willing Medical Power of Attorney representative or court-appointed guardian, someone still needs to make medical decisions. The West Virginia Health Care Decisions Act (W. Va. Code § 16-30-8) provides a statutory process for selecting a health care surrogate in exactly this situation.

For families of young adults with disabilities who have not yet executed advance directive documents, the surrogate law is the backstop. Understanding how it works — and why you probably should not rely on it — is critical.

The Statutory Priority List

When the attending physician or advanced nurse practitioner determines that a patient is incapacitated and cannot provide informed consent, they select a surrogate in writing after reasonably checking whether an authorized, capable, and willing Medical Power of Attorney representative or court-appointed guardian exists. If none is available, they make reasonable inquiry into this prioritized list:

1. Spouse
2. Adult children of the patient
3. Parents of the patient
4. Adult siblings of the patient
5. Adult grandchildren of the patient
6. Close friends of the patient
7. Any other eligible person or entity, including public agencies, public guardians, and public officials

The attending physician or advanced nurse practitioner must document the surrogate selection in writing. The surrogate can then make healthcare decisions without court involvement — including consent to or refusal of treatment, access to medical records, and participation in care planning.

Why Parents Are Third in Line

For families of 18-year-old disabled adults, the priority list creates a practical problem. If your child is unmarried and has no adult children (as is typical for a young adult), the parents are the next listed family category. But the statute does not guarantee that a parent will be selected — the provider must make reasonable inquiry and may choose a lower-ranked person who is best qualified, documenting the reason in the medical record.

If your child is married, the spouse is the first listed category, subject to the statutory availability and qualification rules. If your child has an estranged co-parent or if divorced parents disagree on care, the provider may face conflicting claims about who has authority. The surrogate law provides an order of priority, but it does not resolve family disputes.

What the Surrogate Can and Cannot Do

A health care surrogate has the authority to:

• Consent to or refuse medical treatment
• Access the patient's medical records
• Discuss treatment options with the medical team
• Authorize transfers between facilities

A surrogate generally cannot:

• Override a known wish of the patient expressed when they had capacity
• Make healthcare decisions contrary to the patient's known wishes and values; if those wishes are not reasonably known, decisions must reflect the patient's best interests
• Make financial or legal decisions — only healthcare choices

The Problem with Relying on the Surrogate Law

The surrogate process is a reactive backstop, not a proactive plan. Several practical issues make it unreliable as a primary strategy:

It only activates during incapacity. If your adult child has a cognitive disability but is not incapacitated — they are conscious and able to communicate, even if their communication is limited — the surrogate law does not apply. The provider may still refuse to share information with you under HIPAA unless you have a signed authorization.

It depends on a documented determination. The Act requires the attending physician, a physician, a qualified psychologist, a physician's assistant, or an advanced practice registered nurse who personally examined the person to record the determination and its basis in the medical record. A disability diagnosis alone does not establish incapacity.

It provides no permanent authority. A surrogate's authority is tied to the incapacity determination: it ends when the person is no longer incapacitated or the surrogate is unwilling or unable to serve, and it may recommence if incapacity returns under the Act. You do not have standing authority to coordinate long-term care planning, manage prescriptions between appointments, or communicate with specialists outside those conditions.

What You Should Do Instead

A Medical Power of Attorney under W. Va. Code § 16-30-4 gives you a proactive, documented authority that providers may rely on when the Act's requirements are met. It requires your adult child to sign the document with two witnesses and notarization — but once executed, it can take effect when incapacity occurs, subject to the document and the Act.

Additionally, registering the MPOA with the West Virginia e-Directive Registry (through the WV Center for End-of-Life Care — fax to 844-616-1415, no fee) makes the document accessible to emergency room staff and specialists around the clock.

If your child cannot sign an MPOA because they lack the capacity to understand the designation, then you face a choice between relying on the surrogate priority list and pursuing a limited guardianship over medical decisions through the circuit court.

The West Virginia Adult Guardianship & Alternatives Guide covers both paths in detail — the voluntary MPOA route and the court-ordered guardianship route — along with the HIPAA authorization forms and e-Directive Registry process that fill in the gaps.

See more West Virginia guides →