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