Finance
Instrument: Power of Attorney (POA)
What is it for?
A POA allows an individual (principal) to authorize another person (agent) to make decisions concerning the principal’s property on the principal’s behalf.
What does it do?
A POA empowers the agent to make decisions and act with respect to the principal’s property. The agent’s decisions are binding on the principal to the same extent as if the principal had made them.
Unless a POA expressly states otherwise, a POA is considered to be “durable,” which means the agent’s authority continues during a period when the principal lacks capacity. W. Va. Code Ann. § 39B-1-104.
In making decisions for the principal, the agent must act in good faith, only within the
scope of the authority granted in the POA, and in accordance with the principal’s known expectations and in the principal’s best interest. W. Va. Code Ann. § 39B-1-114.
Third parties must generally accept decisions made by the agent as if the principal had made them. They may, however, request the agent for a certification of the POA’s validity. W. Va. Code Ann. § 39B-1-120.
How does one make it?
A POA must be in writing, signed either by the principal or by another in the principal’s conscious presence, and notarized. W. Va. Code Ann. § 39B-1-105.
When does it come into effect?
A POA can state that the agent’s authority begins either immediately upon execution, at a future date, or upon the occurrence of a future event, such as the principal’s incapacity. W. Va. Code Ann. § 39B-1-109 (a). The latter kinds of POA are sometimes referred to as “springing” POAs because the agent’s authority comes into effect in the future.
If a POA becomes effective upon a future event, a principal may designate one or more persons to determine in writing that the future event has occurred. W. Va. Code Ann. § 39B-1-109(b). If that future event is the principal’s incapacity, and the POA does not specify who will determine whether the principal is incapacitated, then the incapacity determination must be made by a physician or a licensed psychologist. W. Va. Code Ann. § 39B-1-109(c)(1).
“Incapacity” means the principal’s inability of an individual to manage property or business affairs due to an impairment in their ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. W. Va. Code Ann. § 39B-1-102(5).
How long does it last?
A POA lasts until the principal or agent dies or becomes incapacitated (if the POA is not durable); the principal revokes the POA; the POA provides that it terminates upon some future date or event; the purpose of the POA is accomplished; or the agent’s authority is revoked pursuant to statute. W. Va. Code Ann. § 39B-1-110(a)-(b).
How does one end it?
A principal may revoke a POA by either following the steps for revocation stated in the POA document itself or any other method that manifests clear and convincing evidence of the principal’s intent to revoke the POA. W. Va. Code Ann. § 39B-1-110.
What does an example look like?
An optional POA form is provided at W. Va. Code Ann. § 39B-3-101.
What else should one know?
West Virginia’s POA is based on the Uniform Power of Attorney Act.
Last update June 2022
Education
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Health
Instrument: Medical Power of Attorney (MPOA)
What is it for?
A “medical power of attorney” (MPOA) allows an adult (the “principal”) to appoint certain other adults (the “representative”) to make their medical decisions in the event of the principal’s incapacity. “Incapacity” means the principal’s inability because of physical or mental impairment to appreciate and communicate the nature and implications of a health care decision. W. Va. Code Ann. § 16-30-3.
What does it do?
The MPOA allows a “capable adult” to give the authority over their health care decisions to a representative when the principal lacks capacity to do so. “Capable adult” means an adult who is physically and mentally capable of making health care decisions and who does not have a court-appointed guardian or a conservator appointed. Health care decisions that a representative may make include any decision to give, withhold, or withdraw informed consent to any type of health care, including, but not limited to, medical and surgical treatments, including life-prolonging interventions, psychiatric treatment, nursing care, hospitalization, treatment in a nursing home or other facility, home health care, and organ or tissue donation. W. Va. Code Ann. § 16-30-3.
The representative must make health care decisions on behalf of the principal in accordance with the principal’s known wishes and values. If the principal’s wishes are not known, then the representative must make decisions in the principal’s best interests. W. Va. Code Ann. § 16-30-9. The representative may not be a treating health care provider of the principal, an employee of a treating health care provider not related to the principal, or an operator or employee of a health care facility serving the principal. W. Va. Code Ann. § 16-30-4(c).
Following a determination of the principal’s incapacity, the representative has the same right of access to the principal’s medical information and the same right to discuss that information with their health care providers that the principal would have had. W. Va. Code Ann. § 16-30-6(e).
It is the principal’s responsibility to notify health care providers of their MPOA. W. Va. Code Ann. § 16-30-6(d).
How does one make it?
A MPOA must be in writing, dated, signed either by the principal or by another person in the principal’s presence at the principal’s express direction in the presence of two or more adult witnesses, and notarized. W. Va. Code Ann. § 16-30-4(a).
Witnesses may not be a person who signed the MPOA on behalf of the principal, related to the principal by blood or marriage, entitled to any portion of the principal’s estate, directly financially responsible for the principal’s medical care; the attending physician, or the principal’s MPOA representative. W. Va. Code Ann. § 16-30-4(b).
When does it come into effect?
The representative’s authority becomes effective only upon the incapacity of the principal, as determined in writing by the principal’s attending physician, a physician, a qualified psychologist, a physician’s assistant, or an advanced practice registered nurse who has personally examined the person. This determination must be included in the principal’s medical record and must state the basis for the determination of incapacity, including the cause, nature, and expected duration of the person’s incapacity. W. Va. Code Ann. § 16-30-7(b). The representative’s authority ceases should the principal regain capacity. W. Va. Code Ann. § 16-30-7(d).
A diagnosis of mental illness or intellectual disability does not create a presumption that the principal is incapacitated. W. Va. Code Ann. § 16-30-7(a).
How long does it last?
A MPOA lasts until the principal regains capacity. W. Va. Code Ann. § 16-30-4.
How does one end it?
The principal may revoke an MPOA at any time by either destroying it, signing and dating a written revocation, or by verbally expressing their intent to revoke the MPOA in the presence of an adult witness who signs and dates a writing confirming the principal’s expression of intent. W. Va. Code Ann. § 16-30-18(1).
What does an example look like?
An optional MPOA form is provided at W. Va. Code Ann. § 16-30-4.
What else should one know?
Admission to a health care facility may not be conditioned upon a person having completed an MPOA. W. Va. Code Ann. § 16-30-4(e).
Last update June 2022
General
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