If you want someone to be able to deposit your checks at your bank, file your taxes, or even sell or mortgage your home, you can create a handy document called a power of attorney. A POA is a simple document that grants specific powers to someone you trust—called an "agent" or "attorney-in-fact"—to handle certain matters for you.
You can make several different types of POAs in West Virginia. In particular, many estate plans include two POAs:
In most estate plans, these POAs are what are known as "durable" POAs, which means that they retain their effectiveness even after you're incapacitated. It's a good idea for most people to create these two documents, as they help plan for the unexpected.
To learn about other types of POAs, including non-durable (limited) and springing POAs, see What Is a Power of Attorney. Below, learn how to create a durable financial POA that is valid in West Virginia.
For your POA to be valid in West Virginia, it must meet certain requirements.
The person making a power of attorney must be of sound mind. The exact contours of this mental capacity requirement are open to interpretation by West Virginia courts. If you're helping someone make a POA and you're not sure if they meet the mental capacity requirement, you should consult a lawyer.
West Virginia requires you to sign your POA and get it notarized (certified by a notary public).
West Virginia offers a statutory form (a form drafted by the state legislature) with blanks that you can fill out to create your POA. However, statutory forms are often full of legalese, and it's not always apparent how to fill them out. For a more user-friendly experience, you can try a software program like WillMaker, which guides you through a series of questions to arrive at a POA that meets your specific aims and is valid in your state. You can also hire a West Virginia lawyer to create a POA for you. Many lawyers will include durable POAs as part of a more comprehensive estate plan alongside a will or living trust.
Whatever method you choose, the process of making the POA will include either granting your agent comprehensive powers or selecting (initialing), from a list, each specific power you want your agent to have. For example, you might choose to grant your agent the power to act for you with respect to these subject areas:
In West Virginia, your POA is durable (effective even after incapacitation) unless it explicitly states that it terminates when you become incapacitated.
As mentioned above, in West Virginia, you must have your POA notarized.
Once you have completed the POA, store the original in a safe place that your loved ones can easily access, and let them know where to find it. (It won't do much good locked away in a safe that no one can get into.) If you become incapacitated, your agent might need the original POA to act on your behalf.
You should also give a copy of the power of attorney to your agent so that your agent is familiar with the contents of the document.
If you initialed "real property," giving your agent the power to conduct transactions with real estate, you should also file a copy of your POA in the land records office in the county where you own real estate or expect to deal with real estate in the future. In West Virginia, this office is is part of the county clerk's office. If you put your POA on file, the county clerk's office will be able to recognize your agent's authority if your agent ever needs to sell, mortgage, or transfer real estate for you.
You can also give copies of your durable financial POA to banks or other institutions that your agent might need to deal with in the future. This step might eliminate some hassles for your agent if your agent ever needs to use the POA. However, it's not necessary.
Legally speaking, you can name any competent adult to serve as your agent. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing agents, see What Is a Power of Attorney.
West Virginia allows you to appoint co-agents who are authorized to act at the same time, but it's usually advisable to stick to just one agent to minimize potential conflicts. However, naming a "successor" agent—an alternate who will become your agent if your first choice is unavailable for any reason—is always a good idea, as it creates a backup plan.
Your POA is effective immediately unless it explicitly states that it takes effect at a future date.
It's possible to create a condition that must be satisfied before the POA becomes effective—such as a doctor declaring that you are incapacitated—but there are many reasons why this type of "springing" power of attorney is not usually advised.
Any power of attorney automatically ends at your death. A durable POA also ends if:
Additionally, in West Virginia, if your spouse is named as your agent in your POA, that designation automatically ends if you or your spouse files for divorce. To be clear, your ex-spouse's authority to act as your agent ends, but your POA is still intact. So if you named a successor agent, that person would become your agent instead.
For more on West Virginia planning issues, see our section on West Virginia Estate Planning.