Powers of attorney and health care directives in West Virginia
Key takeaway
West Virginia powers of attorney and health care directives set when an agent may act, what authority may extend to trusts and health information, and how courts limit guardianships and conservatorships. These rules apply to owners of businesses, real estate and private investments, as well as their spouses and adult children. West Virginia also sets signing requirements for powers of attorney.
Power of attorney effectiveness and signing
A West Virginia power of attorney takes effect when executed unless the principal sets a future date or a future event or contingency for effectiveness. The principal must sign it, or direct another individual to sign in the principal's conscious presence. The signature must be acknowledged before a notary or another authorized official.
Authority over trusts and health information
A West Virginia agent may create a trust or fund an existing trust during the grantor's lifetime only when the power of attorney expressly authorizes that action. An agent may revoke, amend or distribute trust property only when the trust instrument or the power of attorney expressly authorizes it.
A person authorized by the principal to determine incapacity may act as the principal's HIPAA personal representative. That role permits access to health care information and communication with providers.
Guardianship and conservatorship limits
West Virginia courts deciding guardianship or conservatorship matters must weigh the person's limitations, maximum self-reliance and less restrictive alternatives such as advance directives. Any guardianship or conservatorship must be the least restrictive possible, with powers limited to what is absolutely necessary to protect the individual.
A guardianship or conservatorship petition may be filed by the alleged protected person, a caregiver or a care facility, among others. A guardianship petition must identify agents named in durable powers of attorney, medical powers of attorney or living wills. Copies of those documents must be attached if available.
West Virginia permits a limited guardian when a protected person can still handle some essential health, care, safety, habilitation or therapeutic needs. A limited conservator is permitted where a person's property or finances are so limited that only designated contexts warrant limiting that person's legal rights.
A West Virginia power-of-attorney agent must attempt to preserve the principal's known estate plan when consistent with the principal's best interest, weighing relevant factors.
Common questions
When does a West Virginia power of attorney take effect?
A West Virginia power of attorney takes effect on execution unless the principal makes it effective at a future date or on a future event or contingency.
Can a West Virginia agent change trust property?
An agent may revoke, amend or distribute a grantor's trust property only if the trust instrument or the power of attorney expressly authorizes the action. Creating or funding a trust during the grantor's lifetime also requires express authorization in the power of attorney.