From informed consent to code: Clinical risk management tools for anesthesiologists

Executive Summary

Anesthesiologists and surgeons are increasingly caught in high‑stakes perioperative situations where the law and the facts are not very clear, especially around informed consent, advance directives, powers of attorney, and Do-Not-Resuscitate (DNR) Orders. This article offers a practical framework, grounded in Virginia law, to separate those concepts into four “buckets” and give perioperative teams and clinical risk‑management professionals concrete tools for real‑time decision‑making.​​

First, informed consent for anesthesia in Virginia is shaped primarily by malpractice case law and professional standards, not by the Virginia Health Care Decisions Act. Cases such as Tashman, Rizzo, and Mayr confirm that informed consent is a negligence question focused on what a reasonably prudent anesthesiologist would disclose, and that in a team‑based model the attending may satisfy the duty through a combination of personal discussion and properly supervised team members, as long as the overall process meets that standard.​

Second, advance directives, health‑care agents, and default surrogates are governed by the Virginia Health Care Decisions Act, which presumes adult capacity and requires a formal, usually two‑step incapacity determination (attending plus independent physician capacity reviewer) when decision‑making authority is shifted from the patient to an agent or surrogate. Third, DNR and code‑status decisions are implemented through physician orders written under specific DNR provisions in the Act, with robust good‑faith immunity for clinicians who act within the statutory framework but without any requirement to treat a pressured intra‑operative phone call as an immediate, binding code‑status change.

Finally, the article explains how powers of attorney and agents interact with loss of capacity, when guardianship or conservatorship is the realistic way to “replace” a problematic agent, and how emergency‑treatment and surrogate‑consent statutes allow urgent care to proceed when no reliable decision‑maker is available. The aim is to help perioperative teams and risk‑management leaders think strategically about capacity, consent, advance directives, DNR, and power of attorney as distinct but interlocking tools, so they can protect patients’ wishes, support sound clinical judgment, and reduce avoidable legal risk in the moments that matter most.

Introduction

The idea for this piece grew out of conversations with anesthesiologists who were wrestling with the recurring uncomfortable question: “What do I actually do when the law, the chart, and the family are all pulling in different directions?” Even after handling clinical risk management scenarios for several years, I left my initial discussions dissatisfied with my answers to their questions and felt compelled to clarify the legal mechanisms that are used in this space and the nuance that must be employed when communicating advice. Pondering some of the situations, I realized how colloquial translation of legal terms has really muddied the picture of what is expected of anesthesiologists and physicians in these difficult situations. I was also reminded about why I got into health care law which is to be in the thick of these difficult situations with physicians prepared to make difficult decisions; not just to leave them feeling like they have no support and no options. Some of the hardest moments were not about drug choices or airways, but about whether a pressured phone call could change code status mid‑case, what to do with an overreaching or incapacitated power of attorney (yes, you read that correctly), and how far a single‑physician “capacity” call really carries when the statute expects more.

Those discussions highlighted just how easy it is for terms such as informed consent, advance directives, Do-Not-Resuscitate (DNR) orders, and powers of attorney (POA) to blur together at the bedside, even though each sits in a different legal bucket, with different standards and protections. This is exactly the space where compliance, clinical ethics, and risk management intersect in my practice: helping clinicians translate statutes and case law into clear, defensible steps they can follow in real time, under pressure. This article is an attempt to assemble relevant guidance in one place, in the language of clinicians, for the kinds of cases that actually keep them up at night.

Note: these legal buckets are primarily anchored in state law, so for the sake of example and ease of reference, I have highlighted Virginia because it is my home and one of the states in which I am licensed.   While the analysis in this article will depend on the state and as such the underlying law may result in a substantially different analysis, a number of states have a similar legal framework that would lead to similar analysis and end points.  This article is intended to provide a broad overview, but it is critical to apply the law in the state in which care is delivered.

In Virginia, anesthesia informed consent, advance directives, power of attorney and DNR questions often get lumped together under “capacity,” but they rest on very different legal foundations. Informed consent for anesthesia is mostly case‑law driven and focused on disclosure standards, while advance directives, surrogate decision‑making, and DNR orders are statute‑driven under the Virginia Health Care Decisions Act and related provisions. For clinical risk management, it is essential to keep these buckets separate and to understand when a single‑clinician capacity call is enough and when the statute expects more structure and documentation. However, regardless of what bucket the scenario falls into, showing up as competent and eager counsel to protect and assist the physician is essential when serving in the roles of counsel clinical risk management.

Bucket 1: Informed consent for anesthesia (negligence and professional standard)

For anesthesia, failures of informed consent in Virginia are analyzed as negligence, not as common law, intentional tort of battery, and the scope of disclosure is governed by professional standards rather than by the Virginia Health Care Decisions Act. The Supreme Court of Virginia has repeatedly framed informed consent as part of the ordinary duty of care. In Tashman v. Gibbs, the Court held that a physician has a duty, “in the exercise of ordinary care, to inform a patient of the dangers of, possible negative consequences of, and alternatives to a proposed medical treatment or procedure.”[1] In Rizzo v. Schiller, the Court emphasized that “the law requires informed consent, not mere consent,” and recognized that a failure of disclosure may underpin a malpractice claim.[2]

With the above cases, Virginia has established informed consent malpractice case elements as the same as those of traditional negligence cases: duty, breach of duty, cause, proximate cause, and damages. Many states throughout the country have stuck to a professional standard for duty- what a reasonably prudent practitioner would provide under similar circumstances; however, there was a case handed down in Pennsylvania that threatened the Anesthesia team model operation and way of demonstrating anesthesiologist met their duty. In Shinal v. Toms, the decision eliminates the ability to introduce into a court of law any evidence of any subordinate who provided information to obtain a patient’s informed consent.[3] Only conversations and information provided directly by the patient’s attending physician of record can be admitted into evidence to demonstrate the professional standard for duty was met. With this in mind, it begs the question: how do anesthesia team-based practices adjust to properly get informed consent under such crushing conditions today when there is barely enough staff to fill rooms?

Thankfully, Virginia decided Mayr v. Osborne at a similar time as Shinal taking Virginia in a less restrictive direction for informed consent requirements allowing an important nuance for modern perioperative teams.[4] In Mayr, the Court reaffirmed that the content of disclosure is defined by what a reasonably prudent practitioner would provide under similar circumstances, typically established through expert testimony. At the same time, Mayr recognized that, in a team‑based practice, the attending physician may satisfy the disclosure duty through a reasonable combination of personal discussion and properly supervised team members, so long as the overall process meets the professional standard.[5]  For anesthesia, this means the attending still “owns” the duty to ensure that material risks, benefits, alternatives, and likely escalation paths are adequately explained but does not have to deliver every word personally, provided the team’s process, under the physician’s direction, meets what a prudent anesthesiologist would do under similar circumstances.[6]

Layered on top of this case‑law framework are the federal Centers for Medicare and Medicaid Services Conditions of Participation for hospitals and ambulatory surgical centers (ASC) Conditions of Coverage that require that informed consent be documented as a patient‑specific process, not just a signature on a form. Hospital regulations require that the medical record contain a properly executed informed consent for procedures and anesthesia, reflecting a discussion of the procedure, anticipated benefits, material risks, and alternatives; similar requirements appear in the ASC regulations.[7] In practice, this means that the anesthesia professional  or someone from the anesthesia team, should engage the patient, before sedation or anesthesia, to discuss the anesthesia plan, reasonably foreseeable escalation (for example, monitored anesthesia coverage to general anesthesia), and reasonable alternatives, and then document that discussion in a way that goes beyond boilerplate language.

In this “Informed Consent for Anesthesia” bucket, a single clinician can assess decision‑making capacity and obtain informed consent. The later litigation question is whether the disclosure met the professional standard of care, not whether two clinicians formally certified incapacity for statutory purposes.

Bucket 2: Capacity, agents, and surrogates under the Virginia Health Care Decisions Act

By contrast, advance directives, power of attorneys, healthcare agents, and default surrogate decision‑making are governed by the Virginia Health Care Decisions Act.[8] The Virginia Health Care Decisions Act defines when an adult is “incapable of making an informed decision” and presumes that every adult is capable unless determined otherwise.[9]

A common pushback I hear from physicians is “I myself can determine capacity." My respectful retort is, yes, I trust in your clinical everyday ability to assess capacity. However, when the goal is to shift decision‑making authority from the patient to an agent or stand-in surrogate[10] (or from one POA to another or one agent to another) under the Virginia Health Care Decisions Act, Virginia law expects and requires a more formal, two‑step process:

1. The attending physician must personally examine the patient and certify in writing that the patient is incapable of making an informed decision about the specific health care in question.[11]
2. An independent capacity reviewer, typically a licensed physician or clinical psychologist not currently responsible for the patient’s treatment, if reasonably available, must also personally examine the patient and provide a separate written certification of incapacity.[12]

These determinations must occur before health care is provided, continued, withheld, or withdrawn under an advance directive or surrogate authority, or as soon as reasonably practicable afterward, and they must be renewed at least every 180 days while the patient continues to receive health care under that surrogate framework.[13]

This is where clinical language often collides with statutory structure. Clinically, a physician can certainly make a bedside decision that a patient lacks capacity for a given informed‑consent discussion. Legally, however, when the team wants to rely on an agent or default surrogate under the Virginia Health Care Decisions Act and to claim the protections that flow from it, the safer and more defensible play is to follow the two‑certifier process the statute describes.

Additionally, clinicians regularly raise a practical version of these issues: “The POA is here,” or “the health‑care agent is at the bedside: can they decide?” The first step is always eyes on paper. And to obtain and review the actual advance directive or POA or agent document, not just accept a family member’s verbal assertion of authority. It is not the individual physician’s job to perform a full fraud or capacity analysis on the instrument. Instead, clinical risk management, legal, and registration and admitting processes should support the bedside team. But front‑end processes should be designed to prompt proof that anyone asserting decision‑making authority in fact holds it, and to get those documents scanned into the record whenever possible.

Two additional points often get lost in the rush of perioperative care:

1. Under both the Virginia Health Care Decisions Act and the POA framework, an agent or POA does not replace the patient while the patient still has capacity. Even if the paperwork is perfectly valid, the clinical team should take decisions from the patient directly as long as the patient can understand, appreciate, reason, and communicate about the proposed care. The agent’s or POA’s role is typically contingent. It fully “activates” only after the patient has been determined incapable of making an informed decision for the relevant health‑care questions.
2. The fact that a document uses the word “durable” does not mean the agent’s authority overrides a capable patient’s contemporaneous choice. It means the instrument survives the patient’s later incapacity, so that the same named agent can continue to act after capacity is lost. Clinicians should therefore default to the patient’s own wishes when capacity is present, use the agent or POA only when the statute’s incapacity criteria are met and documented, and loop in clinical risk management promptly when there is any mismatch between what the paper appears to say and what is happening at the bedside.

Bucket 3: DNR orders, code status, and good‑faith immunity

DNR orders and code status live in the same statutory ecosystem but in a more specific set of provisions. A “Durable Do Not Resuscitate Order” is a written physician’s order, issued under Va. Code § 54.12987.1, to withhold cardiopulmonary resuscitation (CPR) from a particular patient in the event of cardiac or respiratory arrest. At a base level, it is important to remember that what is colloquially called a ‘DNR’ is, in legal terms, a physician’s order. That means the order is written under the physician’s license and must be compatible with the physician’s clinical judgment about what is safe, appropriate, and not unduly harmful for the patient. The statute expects physicians to implement the patient’s, agent’s, power of attorney’s (POA), or surrogate’s decisions through such orders, but it also recognizes that no clinician is required to enter an order that, in their professional judgment, would be medically inappropriate. In those situations, the right response is to clarify goals, involve ethics and risk management when timing is correct, and, if necessary, transfer care rather than simply “rubber‑stamp” an order.

Durable DNR[14] orders and implementation of code status are addressed in Va. Code § 54.12987.1 and related sections.[15] Code status is not changed by family pressure alone or by their ever-changing decisions. It is operationalized through physician orders written in accordance with the Virginia Health Care Decisions Act, either based on a capable patient’s decision or, if the patient has been found incapable, on an authorized POA’s, agent’s or surrogate’s decision.[16]

Are DNR Orders Themselves “Advance Directives”?

A distinction that often gets blurred at the bedside is the relationship between an advance directive and a DNR order. In everyday conversation, clinicians and families talk about “a DNR” as if it were the same thing as “an advance directive.” In the Virginia Health Care Decisions Act, those are related but not identical concepts.​

Under the Virginia Health Care Decisions Act, an advance directive is the patient’s own instructional or proxy document: a written (or, in limited circumstances, oral) directive, executed with witnesses, that states what health care the person does or does not authorize if later incapacitated, which can also appoint an agent to decide for them at a later time.[17] A DNR order, by contrast, is a physician’s medical order that instructs healthcare providers not to initiate CPR in the event of cardiac or respiratory arrest.

In practice, the two interact this way:

1. An advance directive may clearly state the patient’s wishes about life‑prolonging procedures, including resuscitation. The directive authorizes refusal of CPR as part of broader end‑of‑life instructions.
2. A physician then implements those wishes in the treatment record by writing a DNR order (or durable DNR), consistent with the advance directive or with a valid agent, POA, or surrogate decision under the Virginia Health Care Decisions Act.​

For risk‑management purposes, this distinction matters because the legal protections travel with the framework, not just the label. The advance directive (and the agent, POA, surrogate rules around it) tells you who may decide and what they have authorized. The DNR is an operational physician order that tells the team what to do at the bedside during an arrest.

Mid-Procedure Phone-Call Example

A verbal notice or phone call from a family member does not by itself create or revoke an advance directive, and it does not, standing alone, obligate the anesthesiologist to treat that call as an immediate DNR order. The defensible path remains to act under the existing orders during the case, then revisit whether a new or revised DNR order is appropriate through the formal statutory process once the patient is stabilized and the legal decision‑makers and documentation are clear.
The statute assumes a formal change in orders, not an informal, undocumented shift.[18] That statutory structure is paired with a powerful immunity clause under the Virginia Heath Care Decisions Act:

A health‑care facility, physician, or person acting under a physician’s direction shall not be subject to criminal prosecution or civil liability or be deemed to have engaged in unprofessional conduct for issuing a durable DNR order or for providing, withholding, or withdrawing health care under authorization or consent obtained in accordance with the Act, or for providing, withholding, or withdrawing ongoing health care.[19]

This creates a presumption of protection for the anesthesiologist so long as the clinician acts in good faith within the statutory framework. Anyone who challenges that conduct bears the burden of proving lack of good faith or non‑compliance.

Applied to a common perioperative scenario: an elderly patient admitted as full code, with no DNR order in the record, already under anesthesia when a child holding POA or agent calls mid‑procedure under family pressure to change the code status, a reasonable, defensible approach in Virginia is:

• Treat the patient as full code during the anesthetic, consistent with existing orders.
• Document the intra‑operative phone call, the concerns raised, and the clinical judgment that this is not the appropriate moment to renegotiate goals of care or code status.
• After the procedure, in a more controlled setting, review any written advance directive or DNR, confirm the scope of the caller’s authority as agent, and, if a change is appropriate, implement it through a new physician order consistent with the Act and hospital policy.

The DNR framework does not require treating a pressured, intra‑operative call as an immediate, binding code‑status change, even if the Act’s good‑faith immunity is broad enough that a mid‑procedure change might arguably be defended after the fact. To make such a change mid‑procedure, the anesthesiologist or overseeing physician would need to satisfy themself that:

1. The caller truly has legal authority (as a properly activated agent or surrogate),
2. The request is consistent with the patient’s known wishes and best interests, and
3. In the, physician’s clinical judgment, the timing of the change does not itself create unacceptable risk of harm.

In reality, those elements are very difficult to verify in the middle of an anesthetic. For that reason, I affirmatively recommend that physicians not change code status based solely on a pressured intra‑operative phone call. The more defensible course is to complete the case under the existing full‑code orders, document the call and the concerns, and then use the formal statutory process post‑operatively to review any advance directive or DNR, confirm the scope of the caller’s authority, and, if appropriate, change code status prospectively in a controlled setting. This approach keeps the physician squarely within the Act’s good‑faith framework and aligns with the negligence standard in Virginia (what a reasonable anesthesiologist would do under similar circumstances) rather than stretching the protections to justify a rushed, mid‑case change.

One final note on this scenario, I realize that if the call mid-procedure was for the reverse (DNR order existing and call to withdraw as to make patient a full code), some may argue the analysis changes. I would be remiss to not warn physician that judicial systems and many juries will lean on the side of preserving life, but I still stand behind my original analysis on how to handle such a an intra-operative call.

Bucket 4: POA, agents, and loss of capacity

Virginia law uses two overlapping frameworks here: the Virginia Health Care Decisions Act (for agents named in an advance directive) and the Virginia Uniform Power of Attorney Act (for powers of attorney, including healthcare POAs). The practical question at the bedside is: when can the patient (or anyone else) change who speaks for them?

When The Patient Still Has Capacity

If the patient still has decisional capacity, the patient retains control over who serves as their decisionmaker:

1. Under the Virginia Health Care Decisions Act, a patient can revoke “all or part” of an advance directive, including the appointment of an agent, by a signed writing, physical destruction, or an oral expression of intent to revoke, effective when communicated to the attending physician, as long as the patient has capacity to understand the nature and consequences of that revocation (Va. Code § 54.1‑2985).

The patient can then execute a new advance directive under Va. Code § 54.1‑2983 naming a different agent, without any need for guardianship or conservatorship proceedings.

1. Separately, under the Virginia Uniform Power of Attorney Act, a principal who still has capacity may revoke an existing power of attorney and sign a new one naming a different agent, so long as statutory execution requirements are met (Va. Code §§ 64.2‑1602, ‑1603, ‑1607).

In other words, while the patient has capacity, changing “who speaks” is primarily a private‑instrument question: revoke and re‑execute, rather than go to court.

When the patient has lost capacity

Once the patient has lost decisional capacity, the landscape changes:

1. If there is a properly executed advance directive naming an agent, that agent has priority to make health‑care decisions within the scope of the directive and the Virginia Health Care Decisions Act. The patient can no longer validly revoke or amend the directive because they cannot meet the capacity threshold for revocation;

or

1. If there is a valid healthcare or general POA, the same basic problem arises: the principal (the patient) can no longer personally revoke or re‑execute instruments under the POA statute because they lack the requisite capacity.

In that setting, if the existing agent or POA is acting poorly, is conflicted, or is no longer a safe or appropriate spokesperson, the practical path to “remove” or override the agent or POA is through court involvement, typically guardianship or conservatorship under Va. Code §§ 64.2‑2000 et seq., so that a judge can limit, suspend, or terminate the agent’s authority and appoint a guardian or conservator.

So, the takeaway for clinicians and risk‑management is:

1. If the patient still has capacity, changing the agent or POA is done by revoking and re‑executing the advance directive or POA.
2. If the patient has already lost capacity and a valid agent or POA is in place, clinicians and families cannot simply “swap out” that decision‑maker by drafting a new form. At that point, guardianship or conservatorship is usually the only realistic route to remove or override the existing agent.

Unfortunately, this answer is not very useful for anesthesiologists in the moment, facing an urgent bordering on an emergent case with a questionable capacity agent or POA. When a patient has already lost capacity and a problematic agent or POA is in place, guardianship or conservatorship is the structural way to change who speaks for the patient over the longer term. But guardianship is not a prerequisite for every urgent perioperative decision. In the perioperative window, clinicians should use the emergency‑treatment exception[20] under the Virginia Health Care Decisions Act when delay would seriously endanger life or recovery, and where there is no effective, reliable agent, fall back on the default surrogate framework in the Virginia Health Care Decisions Act, documenting their good‑faith efforts and reasoning. Guardianship can then be pursued in parallel by the family or hospital if ongoing concerns about the agent’s or POA’s authority or conduct remain.

In practice, this means: if you reasonably conclude that the existing agent or POA instrument is invalid, revoked, or out of scope, or that the agent or POA is unavailable or unwilling to act, you do not have to sit on your hands while someone races to court. You can pivot to the default surrogate framework statutorily preserved in the Virginia Health Care Decisions Act, allowing for stand-in decision makers in list of priority that are able to be identified, identifying the highest‑priority available surrogate first as available in good faith.

For anesthesiologists and physicians working under the Virginia Healthcare Decisions Act (and acts modeled like it in other states), if you remember anything, let it be that good faith efforts to comply with the Act’s provisions will have a higher likelihood of protection, so documenting those good-faith efforts will go a long way if you are challenged legally down the line.

Practical harmonization for risk management

A useful way to harmonize what clinicians say with what the law expects is to frame it as four separate buckets:

1. Informed consent

-Case‑law‑driven, negligence framework.
-One clinician can assess capacity and obtain consent.
-The litigation focus is on adequacy of disclosure under Tashman, Rizzo, Mayr, with documentation that satisfies federal and institutional requirements being more than just a standard form. It should show chart notes documenting a conversation of the anesthesia plan, material risk, patient capacity, patient voluntariness, and patient consent.

1. Advance directives and surrogates (Virginia Health Care Decisions Act)
   -Statute‑driven structure.
   -When shifting authority to an agent, POA or default surrogate, follow the Virginia Health Care Decisions Act’s two‑certifier process and renew determinations as required.
2. DNR and Code Status
   -Implemented and revoked through physician orders written under the Virginia Health Care Decisions Act, not by ad hoc mid‑case family requests.
   -Good‑faith compliance with the Virginia Health Care Decisions Act and existing orders triggers strong immunity from civil, criminal, and disciplinary liability.
3. POA in the setting of lost capacity
   -If capacity remains, changes in “who speaks” are made through new, properly executed instruments that revoke the old.
   -If capacity is lost and a valid POA exists, guardianship or conservatorship is the realistic route to remove or override the agent.

-For emergencies only, POA can be overridden using emergency exception and finding a surrogate decision maker.

Framed this way, clinicians can honestly say, “I can assess capacity myself for informed consent,” while also understanding that, when the conversation shifts to activating agents, changing surrogates, or altering DNR or code status, Virginia expects them to step into a different, statute‑driven process with the significant upside of statutory immunity when they stay inside that lane. With that said, I also realize the sensitivity it takes when talking to anesthesiologists and surgeons explaining to them that what they once believed held more weight and protection might not be without working with risk management and legal counsel to properly execute under the Virginia Health Care Decisions Act to protect themselves and the facility.

The situations that prompt these questions are some of the most difficult moments in perioperative practice. Anesthesiologists and surgeons are being asked to make rapid, high‑stakes decisions in environments where the patient’s chart, the family’s demands, and the legal framework do not always line up neatly, and where the stakes for the patient, the team, and the clinician’s own professional wellbeing are enormous. However, as attorneys choosing to take on these matters in clinical risk management, we need to be ready to offer physicians strategic advice and be willing to run interference to effectively represent them and the facility, so they can get back to what they do best: practicing medicine. Based on my recent conversations with physicians, if there is anything I can stress for attorneys handling matters in hospital operations or clinical risk management, in addition to “getting the law correct," it is that physicians need to feel you are willing to be in the middle of the mess with them and fighting for them in these difficult moments. It does not necessarily have to literally be in-person (although it certainly goes a long way when you can), but if you leave them feeling like all you did was answer a call and hang up after telling them there is nothing you can offer, and you also do not follow up after the procedure to see how the situation resolved, the medical staff will lose faith in the risk management department.

This article is offered as a set of clarifying tools, not as criticism: a way to give clinicians and clinical risk‑management professionals a sharper vocabulary and structure for thinking through these scenarios, so that “capacity,” “consent,” “advance directive,” “DNR,” ”agent," and “POA” are understood as distinct levers that interact rather than as one blurred concept. The aim is to help teams approach these cases more strategically and confidently, protecting patients’ wishes, supporting sound medical judgment, and reducing avoidable legal and regulatory risk in moments that are already hard enough. If you or your organization would like help translating these principles into policies, education, or case‑specific guidance, this is precisely the space in which my compliance and clinical risk‑management work is focused, and I would be glad to discuss how to support your teams. Please reach out to me at rcarey@mcdonaldhopkins.com.

[1] Tashman v. Gibbs, 263 Va. 65, 556 S.E.2d 772 (2002).

[2] Rizzo v. Schiller, 248 Va. 155, 159, 445 S.E.2d 153, 155–56 (1994)

[3] Shinal v. Toms, 640 Pa. 295, 162 A.3d 429 (2017).

[4] Id.

[5] Mayr v. Osborne, 293 Va. 74, 795 S.E.2d 731 (2017).

[6] Id.

[7]  42 C.F.R. §§ 482.13, 482.51, 482.52, 416.47.

[8] Va. Code Ann. §§ 54.1‑2981 to ‑2995.

[9] Id. § 54.1‑2982.

[10] Under the Virginia Health Care Decisions Act, an “agent” is an adult appointed by the declarant in an advance directive, executed in accordance with Va. Code § 54.1‑2983, to make health‑care decisions for the declarant when the declarant is incapable of making an informed decision. The agent’s authority, and any limits on that authority, are defined by the advance directive and by the Act, and the agent has decision‑making priority over default surrogates identified in Va. Code § 54.1‑2986.

A “surrogate” is an adult, other than an appointed power of attorney, agent, or court‑appointed guardian, who is authorized under the Virginia Health Care Decisions Act to make health‑care decisions for a patient who has been determined incapable of making an informed decision and who either has no available power of attorney, agent or guardian or whose power of attorney, agent, or guardian is unable or unwilling to act. Va. Code § 54.1‑2986 establishes a default priority list, beginning with a quorum of a patient care consulting committee (if used) and then spouse, adult children, parents, adult siblings, and other adult family members or close contacts and sets out how and when such surrogates may act.

[11] Id. § 54.1‑2983.2(A).

[12] Id. § 54.1‑2983.2(B).

[13] Id. at C.

[14] A ‘durable’ DNR in Virginia is a physician’s written DNR order, issued in accordance with the Health Care Decisions Act and applicable regulations, that is intended to remain effective across care settings and over time (rather than only for a single encounter), and that EMS and other providers may rely on unless it is revoked or superseded. See Va. Code § 54.1‑2987.1.

[15] Id. § 54.1‑2987.1.

[16] Id. §§ 54.1‑2982, ‑2983, ‑2984, ‑2987.1.

[17] Va. Code § 54.1‑2983.

[18] Id. §§ 54.1‑2983.1, ‑2987.1.

[19] Id. § 54.1‑2988.

[20] Virginia law provides an emergency‑treatment shield for clinicians who, in good faith, provide necessary medical care to an adult incapable of giving informed consent when delay might adversely affect recovery and no legally authorized decision‑maker is reasonably available, so long as statutory notice and documentation requirements are met. See Va. Code § 54.1‑2970; see also Va. Code § 54.1‑2986(A)(1) (clarifying that appointment of a guardian is not required before a treatment decision may be made under the Health Care Decisions Act).