A West Virginia durable power of attorney designates an agent to manage the financial matters of a principal, remaining effective for their lifetime even if they become incapacitated. The powers that a principal grants can encompass a wide range of actions, including managing financial transactions and handling property-related matters.
The principal must carefully choose a trusted individual as their agent, as this person will have significant control over important aspects of the principal’s life. This document is executed in accordance with the laws of West Virginia, ensuring that the agent honors the principal’s interests and that their affairs are managed as they desire, even in their absence or during periods of incapacity.
Laws
- Statute: Chapter 39B (Uniform Power of Attorney Act).
- Presumed Durable: Yes (§ 39B-1-104).
- Signing Requirements: Signature required. Witnesses are not mandated by law (§ 39B-1-105).
- Notarization: Must be signed before a notary public or another authorized official.
- Statutory Form: Yes (§ 39B-3-101).
Definitions
Durable – The term “durable,” when applied to a DPOA, indicates that it remains in effect and is not terminated by the principal’s incapacity (§ 39B-3-102).
Power of Attorney – “Power of attorney” refers to any written or recorded document that gives an agent the authority to act on behalf of the principal, regardless of whether the specific phrase “power of attorney” is employed (§ 39B-3-102).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
If the document doesn’t state otherwise, the agent will have the following restrictions on the types of gifts they can make (§ 39B-2-117). They also must make specific considerations:
Types of Gifts
- Gifts to individuals: An agent can make gifts to individuals. These gifts may go directly to the individuals or an account for their benefit. For example, agents can make gifts to 529 prepaid tuition plans or tuition savings accounts for a child’s education. They can also contribute to trusts and accounts under the Uniform Transfers to Minors Act.
- Split gifts: An agent can allow the splitting of a gift that the principal’s spouse decides on. The gift amount shouldn’t go over the aggregate annual gift tax exclusions for both spouses.
Considerations
- The principal’s objectives (if the agent knows them).
- The nature and value of the principal’s property.
- The principal’s eligibility for state assistance or a benefit or program under specific regulations.
- Whether the principal’s gift-giving history indicates the principal would give a gift in the present.
- The principal’s upcoming commitments and need for maintenance.
- The reduction of estate, income, and other taxes.
Agent’s Authority Limitations
According to § 39B-2-101, the principal must grant authority to the agent for the agent to complete the following acts (and no other instrument may prohibit them):
- Create, amend, revoke, or terminate an inter vivos trust.
- Make a gift.
- Change or create rights of survivorship or a beneficiary designation.
- Delegate the granted authority.
- Reject the principal’s right to benefit from a joint and survivor annuity.
- Exercise domain over the content of electronic communications, as defined in 18 U.S.C. Section 2510(12), that the principal sends or receives.
- Exercise fiduciary powers that the principal can delegate.
- Disclaim property, including a power of appointment.
Also, the agent can’t exercise authority under a DPOA to create in themselves (or an individual to whom the agent owes support) an interest in the principal’s property. For example, they can’t make a gift, beneficiary designation, right of survivorship, or a disclaimer that benefits themselves or someone with whom they have a debt.
Revocation and Termination
Termination
A DPOA is no longer valid when:
- The principal revokes the agent’s authority.
- The document reaches its expiration date or fulfills its purpose.
- The principal dies.
- The principal revokes the document.
- The agent dies, cannot act for themselves, or resigns (§ 39B-1-110).
An agent’s authority terminates when:
- The document terminates.
- The principal revokes their authority.
- Either the agent or principal files for the annulment or dissolution of their marriage to one another.
- Either the agent or principal files for legal separation from their partnership to each other.
- The agent resigns, dies, or becomes incapacitated.
Agent’s Resignation
An agent resigning will terminate a DPOA. The agent will typically issue notice to the principal’s guardian or conservator unless the document provides a different resignation method. If the principal doesn’t have one, the agent will issue notice to the principal’s caregiver, another person with an interest in the principal’s well-being, or a government agency that will protect the principal’s well-being (§ 39B-1-118).
Revocation
The principal must fill out a revocation form, sign it before a notary, and deliver notice to the agent. If the original document is recorded in a West Virginia County Clerk’s Office, the principal must also record the revocation in the same place.
Costs and Fees for Revocation
- Notary fees may cost between $2 and $5 per signature.
- Recording fees may cost between $10 and $25, but the fees will differ depending on the county.
Safekeeping and Registration
Typically, the principal and agent will store copies for their records. They may provide copies to their lawyers or the financial institution where the principal stores their funds, as this may make it easier for the agent to exercise their granted authority.
If you give authority to an agent that lets them handle real estate matters on your behalf, you must record your document with the land records office in the relevant county.
Additional Resources
- West Virginia State Bar: Provides legal information for the general public.
- Legal Aid of West Virginia: Helps people access legal services.
