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How To Make a Power of Attorney in West Virginia FAQ

Written by: Catherine Hodder, Esq. , Senior Legal Writer
Reviewed by: Jordan Walker, J.D. , Legal Writer
Last updated May 20, 2024

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A power of attorney allows you to have someone help you with your legal and financial affairs if you can’t manage them due to an illness or incapacity. Find out answers to frequently asked questions about power of attorney documents and how to create a valid power of attorney according to West Virginia’s state laws.

Frequently Asked Questions

What Is a Power of Attorney?

A power of attorney (POA) is a legal document where you, as a principal, authorize someone you trust to act on your behalf, called an “agent” or “attorney in fact.” There are different types of power of attorney documents that serve different purposes. A financial power of attorney covers legal and financial matters. A medical power of attorney is for healthcare decisions and leaving wishes for your care. West Virginia’s Uniform Power of Attorney Act for financial decisions is found in §39b-1-101 through §39b-4-103 of the West Virginia Code.

Without a power of attorney, if you are suddenly incapacitated or can’t manage your own affairs, your family will have to file for conservatorship. A court then appoints someone as your conservator, which may not be someone you like. A power of attorney avoids the need for a conservatorship because you already have someone willing and able to step in and act for you.

Who Can Be My Agent?

Anyone 18 or older and competent can serve as your agent. When choosing an agent, whether they’re a family member, friend, or professional, make sure they are trustworthy, organized, and responsible. An agent has a fiduciary duty to act in good faith for the benefit of the principal, but they have broad control over your money and property.

You may want to name two agents in your power of attorney but avoid doing so. If your co-agents must act jointly, what happens when they disagree? If you allow your agents to act independently, what happens if they contradict each other? Third parties rarely like having to deal with co-agents as it can complicate matters quickly. It is better to name a primary agent and a backup or successor agent if your primary agent is unable to serve.

What Can My Agent Do in West Virginia?

You decide what powers you want to grant your agent. Common tasks are paying bills and family support, managing assets, and making financial decisions. Under West Virginia statutes §39b-2-101 to §39b-2-217, you can grant your agent general authority to handle transactions involving the following subjects:

  • Real property (your real estate)
  • Tangible personal property (your possessions)
  • Stocks and bonds
  • Commodities and options
  • Banks and other financial institutions
  • Operation of entity or business
  • Insurance and annuities
  • Estates, trusts, and other beneficial interests
  • Claims and litigation
  • Personal and family maintenance
  • Benefits from governmental programs or civil or military service.
  • Retirement Plans
  • Taxes
  • Gifts

Under §39b-2-101, there are certain powers that you, as the principal, must expressly authorize because they allow your agent to reduce your estate. This includes the power to:

  • Create, amend, revoke, or terminate a living trust
  • Make a gift
  • Create or change rights of survivorship
  • Create or change a beneficiary designation
  • Delegate authority granted under the power of attorney
  • Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
  • Exercise fiduciary powers that the principal has authority to delegate
  • Disclaim property, including a power of appointment
  • Access the content of an electronic communication

Why would you want your agent to reduce your estate? You might want them to be able to qualify you for government benefits like Social Security or Medicaid or to minimize your estate taxes. Your agent has broad powers over financial matters, so think carefully about what you want to grant your agent.

What Is a Durable Power of Attorney in West Virginia?

durable power of attorney in West Virginia is POA that remains in effect even if you become incapacitated. According to § 39b–1–104, all POAs are considered durable unless the document explicitly states it will terminate upon the principal’s incapacity.

When Is the Power of Attorney Effective?

A West Virginia power of attorney is effective immediately upon signing by the principal under §39b-1-109. However, you can make a “springing” POA by having it contingent upon a future time or future event, such as the principal’s incapacity.

When Does the Power of Attorney End?

There are events when your power of attorney ends and when your agent’s authority automatically terminates under §39b-1-110. A power of attorney ends when:

  • The principal dies.
  • The principal becomes incapacitated, and the POA is non-durable.
  • The principal revokes the power of attorney.
  • The power of attorney provides that it terminates.
  • The purpose of the power of attorney is accomplished.
  • The principal revokes the agent’s authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not have a successor agent.

The agent’s authority ends when:

  • The principal revokes the authority.
  • The agent dies, becomes incapacitated, or resigns.
  • The agent is your spouse, and your marriage ends in divorce, annulment, or legal separation.
  • The power of attorney terminates.

Naming backup or successor agents keeps your power of attorney from terminating if your primary agent is unable to serve.

Does West Virginia Have a Statutory Power of Attorney?

Yes. West Virginia has a statutory power of attorney form under §39b-3-101. However, it is not mandatory for you to use the statutory form. There are other options to create a West Virginia POA customized for your situation: either do it yourself or hire an estate planning attorney.

Can I Make My Own Power of Attorney in West Virginia?

Yes. If you are an adult and mentally competent, you can make your own power of attorney. When making a power of attorney, you should know who you want to be your agent and what powers you want to grant them. Use forms that conform to West Virginia law and signing requirements. Many people use state-specific online estate planning forms. However, if you have questions about making a power of attorney, you should talk to an attorney for legal advice.

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How Do I Make My Power of Attorney Valid in West Virginia?

To make a valid power of attorney in West Virginia, the principal must sign the document or direct another person to sign on their behalf in their conscious presence. A notary public must acknowledge the signature per §39b–1–105.

Do I Have to Notarize My Power of Attorney in West Virginia?

Yes. A notary must acknowledge the principal’s signature on the document for a valid power of attorney.

What Should I Do After Signing My Power of Attorney?

After signing your power of attorney, provide copies to your agent and any others that require it, such as banks or investment companies. A third party may ask your agent to complete an agent certification form in which your agent certifies that your power of attorney is effective and that your agent has the authority to act on your behalf. It’s also advisable to discuss your wishes and instructions with your agent to ensure they understand their role and responsibilities.

Does a Power of Attorney Agent Get Paid in West Virginia?

Your agent may receive reimbursement of reasonable expenses for acting under your power of attorney in West Virginia. They may receive reasonable compensation for their time unless you state otherwise in your power of attorney.

Is My West Virginia Power of Attorney Valid in Another State?

Yes. Generally, a power of attorney created and executed according to the laws of the state of West Virginia will be recognized in other jurisdictions.

Can I Revoke My West Virginia Power of Attorney?

Yes. You can revoke your West Virginia power of attorney at any time, as long as you’re mentally competent. The revocation should be in writing and communicated to your agent and any third parties who have relied on the POA.

What Estate Planning Documents Should I Have in West Virginia?

In addition to your financial power of attorney, you should consider a health care directive and a last will and testament to make a complete estate plan.

A health care directive incorporates a medical power of attorney and a living will. This document is also known as an advance directive. In your directive, you name an agent to get your medical information, talk to healthcare providers, and make medical decisions for you when you can’t. You can also leave instructions and wishes for medical treatments or life-prolonging measures you want when you have an end-stage illness or terminal condition.

last will and testament is a document used after your death. In your will, you decide who manages your estate, inherits your property, and cares for your minor children and pets. Because you make these decisions and not a court, your family members save time and money in probate court. And you have peace of mind that you are protecting your loved ones and your property.

Fortunately, it is easy to make a valid power of attorney and create other estate planning documents in West Virginia with online estate planning templates.

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