Taking a Grandchild to the Emergency Room Without Custody in West Virginia

A child falls off the swing set and needs stitches. A high fever spikes at midnight. An asthma attack doesn't respond to the rescue inhaler. You're the grandparent or aunt who's been raising this child — but you have no court custody order, and the parent isn't answering the phone.

Here's what you need to know about emergency rooms and medical consent in West Virginia.

True Emergencies: The Hospital Treats First

Under federal law (EMTALA), a hospital that participates in Medicare and offers emergency services must provide a medical screening exam when a person requests emergency examination or treatment. If it finds an emergency medical condition, the hospital must provide stabilizing treatment or an appropriate transfer, regardless of ability to pay. A hospital cannot refuse to treat a child having an emergency medical condition because the accompanying adult lacks custody papers.

West Virginia law reinforces this. WV Code §16-4C-17 limits EMS liability for treatment provided when a patient cannot consent and no legally authorized person is reasonably available. In practice, emergency departments treat children in acute medical crises and sort out consent paperwork afterward.

If a child is bleeding, struggling to breathe, or showing signs of a serious injury or illness, take them to the emergency room. Do not delay because you're worried about consent forms.

Non-Emergency ER Visits

Not every ER trip is a life-threatening emergency. If you bring a child in for a persistent earache, a minor fracture, or something urgent but not immediately dangerous, the hospital intake team will ask about your relationship to the child and your authority to consent.

This is where your Caregiver Consent Affidavit (WV Code §49-2-703) matters. If you have a notarized affidavit on file — or better yet, a copy in your wallet or phone — present it at intake. Under §49-2-702, a health care facility or practitioner must honor a notarized affidavit unless it has actual knowledge that a parent, legal custodian, or guardian has made a contrary decision; §49-2-705 provides good-faith liability protection for people who rely on it.

A Power of Attorney under §49-8-4 also covers medical consent and may be even more readily recognized by hospital administrative staff.

Prescriptions and Follow-Up Care

After the ER visit, the child may need prescriptions filled, follow-up appointments, or specialist referrals. These are routine medical decisions that fall within the scope of both the caregiver affidavit and the POA. The pharmacy and follow-up providers should accept the same consent documents you used at the hospital.

If the ER visit results in a recommendation for surgery or inpatient admission, your affidavit covers that too — the statute authorizes "medical, dental, surgical, diagnostic, and preventative healthcare" without carving out a major-surgery exception. However, if a hospital's risk management team pushes back on a significant procedure, having a POA as well as the affidavit gives you a second instrument to present.

What You Cannot Authorize

Voluntary inpatient psychiatric admission of a minor falls under a different statute (WV Code §27-4-1) and requires a parent, custodial parent, legal guardian, or the minor's own consent if emancipated. An affidavit or POA alone won't satisfy this requirement.

If a parent is unavailable and you have reason to believe a minor has a mental illness or substance use disorder that makes them likely to cause serious harm to themself or others while awaiting examination, any adult may apply for involuntary custody for examination under WV Code §27-5-2.

Being Prepared

The best time to sort out your consent paperwork is before the emergency. Keep a notarized copy of your caregiver affidavit or POA:

• In your wallet or purse
• In the child's school file
• On your phone (a photo or scan of the notarized original)
• With the child's pediatrician

The West Virginia school and medical consent guide includes an appointment prep checklist and a quick-reference authority card you can keep with you — so when the ER asks who you are and what authority you have, the answer is immediate and clear.

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