What is a power of attorney?

A power of attorney is a device you can use to appoint another person to make decisions on your behalf for a set period of time. There are two kinds of powers of attorney in WV, medical power of attorney and financial power of attorney. You may choose to have both or either or none. The person you appoint to handle your affairs is called your agent or your representative. Powers of attorney typically stay valid until you revoke them or until you die. When you are preparing for the possibility of becoming incapacitated both kinds of powers of attorney are options for legally choosing who will make decisions for you. It is a common misconception that powers of attorney are something appointed through a court after a person has become incapacitated. That is not true; a power of attorney to handle decision making can only be given by you through executing the appropriate document, and can only be executed while you are competent.  

A financial power of attorney can be a low-cost, flexible, and private form of surrogate decisionmaking, but it can also be a tool for financial exploitation. Unlike guardians, conservators, and representative payees, agents under financial powers of attorney are not monitored regularly by any government agency, Though it is illegal for an agent to use the principal’s money or property for his own benefit, once an agent abuses the authority it may be difficult or even impossible to get that money or property back. Therefore, a financial power of attorney is not necessarily something every adult should execute. 

It is common for people to fail to carefully distinguish between the two kinds of powers of attorney, so anytime someone is talking to you about powers of attorney it is wise to ask for a clarification on whether you are talking about medical or financial. When someone tells you he or she is a power of attorney agent the only way you can know for certain what kind of power of attorney and what are the limits of the agent’s authority is to see the document for yourself.  

For more information, see: W. Va. Code §§ 16-30-1 to -25 (2015), and W. Va. Code §§ 39B-1-101, et seq (2015) .