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What is a West Virginia Power of Attorney?

A West Virginia power of attorney is a legal document that provides the authorization for a person, referred to as an agent or attorney-in-fact, to make financial decisions, healthcare decisions, real estate decisions, or estate decisions on behalf of the person granting this authority. A West Virginia POA is most often used during the estate planning process, but it is also useful in other circumstances.

Quick Reference:

The person granting permission is referred to as the principal, donor, or grantor.

The person receiving authorization is known as the agent or the attorney-in-fact.

WV POA Laws:

A West Virginia power of attorney is a power of attorney form that must comply with the Uniform Power of Attorney Act found in Chapter 39B of West Virginia’s Legislation. An official West Virginia Power of Attorney form is available here. These laws in the State of West Virginia specifically outline the parameters of a legally enforceable power of attorney and ensures that the form, as well as its duties, are protected under the law. Here are some of the requirements:

  • The attorney-in-fact, and the principal, must be at least 18 years old.
  • The principal must be of sound mind and understand what they are signing.
  • The power of attorney must be in writing. It cannot simply be a verbal agreement
  • The form must be signed by the principal and the attorney-in-fact.
  • The form must be dated, signed in front of a notary public, and signed by two witnesses.
  • The form must contain wording that indicates whether it will be considered durable and must contain language identical or substantially similar to the statutory form provided by the State of West Virginia.

The principal should explain the body of the power of attorney which powers the agent can and cannot exercise on their behalf. The principal may revoke (terminate) the power of attorney as long as they are competent, even if the power of attorney is durable. Additionally, a power of attorney is terminated when:

  • The principal dies.
  • The principal is incapacitated and the power of attorney is not durable.
  • The purpose of the power of attorney is fulfilled.
  • The agent dies, becomes incapacitated, or resigns and the POA does not name a co-agent or successor agent.
  • The principal and agent are married and file for divorce, annulment, or legal separation and the POA does not specifically state that the principal-agent relationship remains.

Why Would You Use a West Virginia Power of Attorney Form?

There are several reasons why someone would use a West Virginia power of attorney to give a person the ability to make decisions related to their tangible personal property, financial institution transactions, tax matters, or their well-being. Some of those reasons include:

  • Their age, mental health concerns, or the diagnosis of an illness. They may want their affairs handled in specific ways. It is generally advised that everyone, regardless of whether they are terminally ill or in perfect health, establish the right power of attorney to ensure their affairs are taken care of and that their wishes are fulfilled.
  • A person diagnosed with a mental illness may need a different power of attorney than a person diagnosed with a terminal illness.
  • A person caring for minor children may need a different power of attorney than a person who does not have minor children.

Every person’s need for a power of attorney may be different. There are several types of powers of attorney available. Before making a decision, seek legal advice to ensure you choose the one best for your needs and ask about how to properly revoke a POA in the event it becomes necessary. Here are the most commonly used West Virginia powers of attorney.

General Power of Attorney

A general power of attorney provides the agent with the authority to handle matters on behalf of the principal.

  • This is the broadest power of attorney. However, this POA is terminated if the principal become incapacitated, dies, or if the principal revokes the document.

Durable Power of Attorney

A durable power of attorney, also known as a statutory power of attorney, is an "extended version" of a general power of attorney because it goes beyond the parameters of a general power of attorney.

  • The term "durable" comes from the fact that this authorization continues over the principal if they were to become incapacitated. If the principal wishes to terminate a durable power of attorney, they may do so as long as they are competent.

Limited (Springing) Power of Attorney

A limited power of attorney, also known as a special power of attorney, grants limited power to whatever the principal specifies.

  • In many cases, an agent will have the power to handle finances, or make medical decisions, but will not have the authority to do other things such as sell property (depending on what the principal decides). This is also referred to as a springing power of attorney because it "springs" into effect in specified or discreet circumstances. The POA terminates once its purpose is fulfilled, when the principal becomes incapaciated or dies, or if the principal revokes it.

Medical Power of Attorney

A medical power of attorney grants power to the agent to make important healthcare decisions on the principal's behalf.

  • Not all medical power of attorney forms are durable. If it is not durable, if the principal becomes incapacitated or declared incompetent, the POA becomes invalid. If it is durable, the POA continues if the principal becomes incapacitated or incompetent, but there are still some restrictions. A durable medical power of attorney form may not be used to make end-of-life decisions. For those decisions, the principal should complete an advance directive while they are still of sound mind. West Virginia University's Center for Health Ethics and Law Provides free information and an advance directive form.

Minor Child Power of Attorney

A minor child power of attorney allows a parent or guardian to grant decision-making rights over their minor child to a temporary guardian in the event that the parent or guardian may not be present during a medical emergency.

  • This form is generally used if the parent or guardian must leave the country for a period of time. It may also be used when the minor child is temporarily traveling or living with an adult who is not their parent or guardian.

Real Estate Power of Attorney

A real estate power of attorney grants power to the agent to buy, sell, and manage real estate on the principal's behalf.

  • This POA may be durable or non-durable, but because of its potential to cause long-reaching and legal consequences for the principal, the principal should seek legal advice before signing this document.

Tax Power of Attorney

A tax power of attorney allows the agent who is usually a qualified individual such as an accountant, to prepare and submit tax information to the West Virginia State Tax Department on behalf of the principal.

  • West Virginia recognizes Form 2848 to establish a tax power of attorney.

Vehicle Power of Attorney

A vehicle power of attorney, known in West Virginia as Form DMV-9-TR, which allows the agent to buy, sell, and handle the necessary paperwork with the West Virginia Division of Motor Vehicles on the principal's behalf.

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