What is a Virginia living will?


A Virginia living will is a written legal document that indicates your desire to withhold or withdraw certain medical care based on your health circumstances. In a Virginia living will typically contain the following language:

“I _______________ have the primary right under Virginia law to make my own decisions concerning treatment that might unduly prolong the dying process. By this declaration, I express to my physician, family, and friends my intent. If I should have a terminal condition it is my desire that my dying not be prolonged by administrative of death-prolonging procedures. If my condition is terminal and I am unable to participate in decisions regarding my medical treatment, I direct my attending physician to withhold or withdraw medical procedures that merely prolong the dying process and are not necessary to my comfort or to alleviate pain. It is not my intent to authorize affirmative deliberate acts or omissions to shorten my life, rather it is only my intent to permit the natural process of dying.”


How is a Virginia living will made?

Anyone who is competent and 18 years of age or older in Virginia can make a Virginia living will by signing and dating a statement like that above, either typed or handwritten, before two witnesses. The witnesses must be at least 18 years of age and in order to avoid legal issues should not be related to the person signing the declaration, a beneficiary of his or her estate, or financially responsible for his or her medical care. Consider that while it is important to prepare an Virginia living will before any hospitalization or impending surgery you should avoid deciding the terms of your will in a short period of time.


What are the limitations of a Virginia living will?

Virginia law provides significant limitations to the scope of a Virginia living will. Terms such as “death-prolonging procedure” and “terminal condition” are used to specify the circumstances to which a living will applies. Both of these terms are related to conditions where death will occur within a short period of time if additional treatment is not provided. A Virginia living will is intended only to avoid treatment when death is imminent and treatment ineffectively avoids or significantly delays death. Also, Virginia statutes prohibit a living will from withholding or withdrawing artificially supplied nutrition and hydration, including sustenance supplied through a feeding tube or intravenously.


What are the alternatives to a Virginia living will?

In Virginia if you would like to provide health care instructions beyond the scope of a living will you may instead create a Virginia health care advance directive. A  Virginiaadvance directive allows you to provide instruction regarding the degree of medical care you would like to receive in particular circumstances when you are unable to refuse treatment yourself. While a competent patient may refuse treatment for himself, an incompetent person may rely on a Virginia advance directive in order to ensure that his wishes are carried out. Recently, Virginia courts have provided people the opportunity to exceed the limitations of living will statutes in Virginia advance directives. Advance directives may include instructions to withhold or withdraw artificially supplied nutrition and hydration or other treatment and machinery, which may maintain a patient in a persistent vegetative state. Additionally, Virginia advance directives do not need to be composed in any standard form and may include procedures that may or may not be used, as well as the effective time frames. However, like living wills, advance directives should be signed, dated, and witnessed.


Where should I store my Virginia living will?

It is important to ensure that your Virginia living will or Virginia advance directives are easily accessible as they may be needed at a moment’s notice. While some people ensure that they constantly have a copy of your living will or advance directive, you should additionally provide your physician with a copy your living will or advance directive. This not only notifies the physician of your desires in the case of an emergency but additionally provides you with the opportunity to discuss your medical options. You should also provide a copy to your attorney-in-fact in the case of your incapacity. Additionally, if you are hospitalized it is important to ensure that a copy has been included with your medical records. It is wise to sign multiple copies of your living will or advance directive.


How do I Revoke a Virginia living will?

A Virginia living will may be easily revoked or cancelled. Under Virginia law either an oral or written statement may revoke your wishes. It is best to gather all copies of your Virginia living will and destroy all copies to prevent any confusion. Many state statutes require that a note of revocation of the living will be placed in your medical records. For more information about Virginia estate planning, check out our blog.