Will the person I appoint to manage my affairs in my durable power of attorney be dismissed in a guardianship proceeding if I become incapacitated?

The new power of attorney law specifies that if a conservator is appointed your power of attorney agent is accountable to the conservator and the agent’s authority under the power of attorney terminates, unless otherwise ordered.

When a person becomes incapacitated to manage his or her own any interested party can file a petition to have a conservator or guardian appointed for the alleged “protected person.” If the court deems the person incompetent to manage his or her finances a conservator is appointed to manage the financial affairs of the protected person. For personal decisions that are not financial the court can appoint a guardian if it finds such appointment necessary. An incompetent person has a right to tell the court who she prefers to be appointed to either of these roles, but the court has the ultimate discretion as to who will be appointed.

By executing a power of attorney you may eliminate, limit, or supersede the need to have a conservator or guardian appointed. The new statutory power of attorney form includes the option for you to nominate a particular individual to be your guardian or conservator if appointment of either becomes necessary. You could name your power of attorney agent as that nominee or someone else, or leave it blank. The court is not required to appoint the person you name in a durable power of attorney to be your conservator or guardian. One reason the court might appoint someone else instead is if the agent or nominee is engaging in improper conduct or is unable or unwilling to assume the responsibilities.

For more information, see: W. Va. Code § 39B-1-108 (2012); West Virginia Guardianship and Conservatorship Act, W. Va. Code §§ 44A-1-1 to -13 (2011); State ex rel. Shamblin v. Collier, 191 W. Va. 349, 445 S.E.2d 736 (1994).