West Virginia Organ Donation and Your Advance Directive

Organ donation and advance directives intersect at a critical moment: the hours after brain death is declared. In West Virginia, how you document your organ donation wishes — and who has authority to act — can determine whether your decision to donate is carried out.

How Organ Donation Connects to Advance Directives

Your advance directive and organ donation preferences operate on separate legal tracks but can affect each other:

• Advance directive — Governs whether life-prolonging treatment is continued or withdrawn. Takes effect when you're incapacitated.
• Organ donor registration — Records your decision to donate organs and tissues after death. You can register through the DMV when renewing your driver's license or through the national donor registry.

The potential conflict arises when a patient has a living will directing the withdrawal of life-sustaining treatment but has also registered as an organ donor. Some organ donations require that the patient remain on ventilator support temporarily after brain death to preserve organ viability.

West Virginia law addresses this: if a patient is determined to have undergone brain death and the authorized surrogate or representative authorizes organ donation, the decision must be implemented within 24 hours unless a court order is obtained to halt the process.

Documenting Your Wishes

You can address organ donation in your advance directive by:

1. Stating your donation preferences explicitly — Include a section in your combined MPOA/Living Will that specifies whether you want to donate organs, tissues, or both after death.
2. Granting your MPOA representative authority — Authorize your representative to make organ donation decisions on your behalf, including temporary continuation of life support for donation purposes.
3. Registering as an organ donor — Complete your registration through the West Virginia DMV or the national registry, in addition to documenting it in your advance directive.

If your advance directive says "withdraw all life support" but you're also a registered organ donor, your representative needs clear guidance on whether temporary support to facilitate donation is acceptable. Addressing this directly in your advance directive prevents confusion at the critical moment.

When Family Members Disagree

If no advance directive exists and no organ donor registration is on file, the decision falls to the statutory surrogate hierarchy. The attending physician selects a surrogate under W. Va. Code § 16-30-8, and that surrogate has authority to authorize or refuse donation.

When a surrogate authorizes donation after brain death, the law gives objecting family members the same narrow window that applies to other surrogate decisions — though organ donation creates additional time pressure because organ viability deteriorates quickly.

Pre-documenting your organ donation wishes removes this potential family conflict entirely.

Practical Steps

• Register as an organ donor through the WV DMV or donate.gov
• Address organ donation explicitly in your combined MPOA/Living Will
• Discuss your wishes with your MPOA representative so they understand your priorities
• Register your advance directive with the WV e-Directive Registry

The West Virginia Advance Directive & Living Will Kit provides a framework for documenting all of your healthcare preferences — including organ donation — in a single, legally binding document.

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