Do I need a lawyer to represent me in the sale or purchase of land?

You are not legally required to be represented by a lawyer in a transaction for the sale of land. However, there are many legal issues to deal with in the sale or purchase of land. The more valuable the land or your investment in it the more important it is to protect your investment by having legal representation to be sure your title is good and potential liabilities are accounted for. 

For instance, when you buy land, you typically first sign an agreement to buy the land. This is often called a purchase and sale contract. What you may not realize is that once you sign this contract, you have a legal right to the property and perhaps a legal obligation to complete the sale. Unless certain conditions arise, you are entitled to the property and the seller is entitled to your money. This also means that if the house burns down, or other changes occur between the time you sign the contract and the purchase is complete you may still have to pay for it, depending on the terms of the contract. If the contract for the sale of land does not deal with this issue, you could suffer a great loss. 

Assuring that the title to your new property is free and clear of liens or other encumbrances is also a critical function of the attorney who represents you as a buyer. Even if you could win a lawsuit against your seller for hiding an encumbrance against the property, it is cheaper to find out about those kinds of problems before you buy than to litigate them later. 

Issues associated with the closing are also possible concerns. At the closing, the buyer produces the money and the seller produces the deed. However, there are a variety of other items dealt with at this stage of the transaction. Such issues may include who pays taxes, who pays recording fees, and who pays outstanding liens on the property. Again, legal representation is not a legal requirement, but when you pay an attorney to represent you as a buyer you are paying for more than merely drafting the deed. 

Real estate brokers may have expertise in this area. However, it is important to realize what the agent’s obligations are. The real estate agent usually works for the seller, not the buyer. This is not always clear to a buyer, who may be under the mistaken impression that the seller’s agent, especially one who has been friendly and helpful, is actually her agent. An agent by law can only represent one party in a transaction unless he or she fully discloses dual agency to both parties and gets consent of both parties. Dual agency creates the likelihood of a conflict of interest on the part of the agent, and is therefore best avoided. Lawyers who work for the lending bank may be able to advise you on some issues, although, again, you should be aware of any conflicts of interest. The bank lawyer represents the bank, not you. If you are buying property, your interests and the bank’s interests may be similar, but there may also be subtle conflicts. The bank lawyer’s loyalty is to the bank, not to you. 

If you are involved in a transaction for the sale of property, an attorney’s assistance is not legally required, but may be quite a bargain if a problem is identified and avoided. Unless you are experienced and knowledgeable in this area, there are too many things that can go wrong when trying to save money by not hiring a lawyer.  

For more information, see: Maudru v. Humphreys, 83 W. Va. 307, 98 S.E. 259 (1919); Timberlake v. Heflin, 180 W. Va. 644, 379 S.E.2d 149 (1989); 7A Michie’s Jurisprudence Vendor and Purchaser § 24 (2009); Messer v. Runion, 210 W. Va. 102, 556 S.E.2d 69 (2001); 19 Michie’s Jurisprudence Equitable Conversion §§ 2, 5 (2009).

I am dissatisfied with the work performed by a home improvement contractor. What are my rights?

Though you have legal rights and remedies discussed below, as a practical matter prevention is often the best cure regarding bad contractors. Carefully hiring a reputable, licensed, insured contractor who has adequate assets you can reach in the event you have to sue gives you the best chance of ultimately getting quality home improvement work completed. 

West Virginia has adopted consumer protection laws that are designed to protect consumers from defective workmanship and fraud. The law follows the Federal Trade Commission Act and is called the West Virginia Unfair or Deceptive Acts or Practices Act (UDAP). This law allows you to sue the contractor in court. Suits may be brought for misleading or fraudulent practices as well as for failure to honor a warranty. 

Three types of warranties exist: written, oral, and implied. The UDAP statute will enforce written warranties; however the UDAP statute does not enforce oral warranties. If a contractor orally gives you a special warranty, you must get it in writing to be able to exercise your rights later. 

The UDAP statute will enforce implied warranties. A warranty may be implied by the nature of the transaction, regardless of whether anything is said by the contractor in words or in writing. For instance, when you buy something, the law provides a warranty that it will work for its intended purpose. A contractor cannot waive or say that he or she is not subject to any implied warranties provided under the law. 

If you are dissatisfied with the work performed by a contractor, your first step is to discuss the matter with the contractor or the contracting company to try to resolve the conflict reasonably quickly. If the contractor’s work is defective or fraudulent, you should inform the contractor of the defects and request that he or she fix them. If you are making payments to the contractor, you may choose to stop payments. However, you could later be held responsible for back payments if the work is not found to be defective.  

If you stop making payments to the contractor, deposit the payments into a special account set up specifically for that purpose. If the contractor refuses to make the repairs, you may then find someone else to fix them. You may have to pay for the same work twice if the first contractor’s work is found not to be defective.  

If you decide to get another contractor to fix the defects, get the second contractor to estimate the cost of the work first, then send the estimate to the original contractor. If he or she refuses to pay it, you can sue in court. You can also file a complaint with the Consumer Protection Division of the Attorney General’s Office. The office will send you a complaint form and assign a mediator to work with you to help solve the problem. The phone number for the Consumer Protection Division is 1 (800) 368-8808.  

Furthermore, if the Attorney General brings a lawsuit against the contractor and wins, you can use this as conclusive proof in your own suit. Consequently, a successful action by the Attorney General makes your case very strong. 

If you file a lawsuit, you can either get a second contractor to perform the work or wait until the dispute is resolved. If at all possible, you may want to wait until the dispute is resolved to protect yourself before you spend any additional money. That way, you can be sure that you will not have to pay both contractors. If you are successful in court, you can recover at least $200, even if your actual damages were less than that. In addition, if the acts of the contractor violate the UDAP statute, you can also collect attorney fees. 

If you go to court and there is a judgment in your favor, you may also choose to register a complaint against the contractor with the West Virginia Contractors Licensing Board. In order to register a complaint send them a copy of the judgment. The Licensing Board may fine the contractor or suspend the contractor’s license, depending upon the circumstances of your case. Your complaint must be in writing, and it must be made to the Board only after a judgment has been issued in your favor. To register a complaint, write to the following address: 

WV Division of Labor   

West Virginia Contractors Licensing Board 

State Capitol Complex 

Building 6, Room B749 

Charleston, WV 25305 

For more information, see: Federal Trade Commission Act, 15 U.S.C. §§ 41- 58 (2015); 15 U.S.C. §§ 2301-2312 (2015); W. Va. Code §§ 46A-6-101 to -110 (2015)

My home was recently damaged in a flood, and now I have to hire a contractor to work on my house. How do I pick one? Is there anything I should watch for?

After a disaster occurs, such as a flood, the most common consumer complaints are about home repair contractors. Disaster areas seem to attract unscrupulous and unqualified contractors.  

This can happen for two different reasons. First, when a large number of homes sustain sudden damage, there are often too few reputable contractors to handle all of the work. Second, the homeowners may be receiving large sums of money from insurance settlements and government emergency aid, and both the contractors and the scam artists are often aware of this money. 

There are several tips on choosing a contractor. Among them are: 

•Make sure the contractor has a valid, current, local license. To check and see if the license is valid, you can contact the West Virginia Contractors Licensing Board at 1 (304) 558-7890 or 877-558-5134.  
•Ask for three references from any potential contractor. Check the references, and, whenever possible, inspect the work. 
•Verify the contractor’s credentials, which includes both training and experience. 
•Avoid door-to-door crews, who often pose as contractors from another job with leftover materials, like roofing supplies or windows. 
•Call the Attorney General’s Office of Consumer Protection at 1 (800) 368-8808 to see if any complaints have been filed against the contractor.  

Before you sign a contract with anyone, there are some precautionary steps you will want to take:  

•Get several different estimates for the work, including a description of the work, materials, and cost.  
•Make sure you get a written contract and that you read and understand everything in it. Under West Virginia law, a contractor is required to put your agreement in writing. If the contractor has promised you any warranties, make sure that they are included in the contract itself.  
•If the contractor requires a deposit up front, make sure that you know what it will be spent on and if you can get a refund. The Office of Consumer Protection recommends that you never pay the full price up front, and that you absolutely never sign over an insurance check to the contractor. It is important that you check the progress of the work and not make the final payment until you are satisfied with the completed work.  
•Finally, be sure that the contractor agrees to do all necessary cleanup when the job is completed.  

If you think you have been a victim of fraud, contact the Office of Consumer Protection at 1 (800) 368-8808.

I recently bought a hearing aid. I got a really good deal on it, but now it is not working properly. Is there anything I can do?

The West Virginia Legislature passed several laws that regulate hearing aid dealers. These laws impose several duties upon hearing aid dealers. First, all hearing aid dealers must have a license to sell hearing aids in West Virginia. This license must be clearly displayed in any office that sells hearing aids. Second, a dealer cannot sell a hearing aid unless she has a note from a physician stating that the hearing aid is needed. You are allowed to waive this right if you are over 18 years old. However, it is highly recommended that you do not waive this protection. If you think you need a hearing aid, first check with a physician. 

Third, when you buy a hearing aid, the dealer must give you a receipt. The receipt must state that you can return the hearing aid in 30 days if you have any problems. All hearing aid purchases must have this 30-day return policy. If you have a problem with the hearing aid, and then the dealer adjusts it, you have 30 more days from the time of the adjustment. 

Hearing aid dealers are not allowed to engage in false or deceptive advertising. In addition, they cannot advertise for mail-order hearing aids or make it seem like they are doctors if they aren’t. If you feel that the hearing aid dealer committed a violation you may contact the West Virginia Board of Hearing Aid Dealers at: 

WV Board of Hearing Aid Dealers Phone: 1 (304) 558-3527 

703 Peoples Building Email: wvear@aol.com

179 Summers Street   

Charleston, WV 25301   

For more information, see: W. Va. Code §§ 30-26-1 to -20 (2015).

I had dentures made by a dentist, and they do not fit properly. I have gone back several times and have had to pay for additional work, and they still do not fit properly. What can I do?

You may submit a complaint to the West Virginia Dental Association. The Dental Association has a peer advisory panel that receives complaints from patients. Complaints can be submitted in writing to the following address: 

West Virginia Dental Association Phone: 1 (304) 344-5246 

2016 1/2 Kanawha Blvd., East  Email: WVRDS@aol.com

Charleston, WV 25311 http://www.wvdental.org

You may also send a complaint to the state Dental Licensing Board at:  

West Virginia Board of Dental Examiners Phone: 1 (877) 914-8266  

PO Box 1447 Email: wvbde@suddenlinkmail.com

Crab Orchard, WV 25827 http://www.wvdentalboard.org

If neither the Dental Association nor the Dental Licensing Board is able to resolve the problem, you may file a lawsuit. At trial, expert testimony is required to establish that the dentist’s work was below a reasonable standard. Expert testimony is usually quite expensive and may be difficult to obtain for a number of reasons. If the damages you suffer are not significant, it may not be in your best interest to sue. However, if you have suffered serious and/or permanent injury consulting an attorney is the first step to protecting your rights.  

For more information, see: W. Va. Code §§ 30-4-1 to -30 (2015); Fitzgerald v. Manning, 679 F.2d 341 (4th Cir. 1982).

I purchased a defective wheelchair two months ago, and the company I bought the wheelchair from refuses to fix it or return my money. Do I have any recourse?

Yes. On June 12, 1998, West Virginia enacted a Lemon Law statute relating to assistive devices. Some examples of assistive devices are wheelchairs, motorized scooters, hearing aids, communication devices for the deaf, optical scanners, talking software, and braille printers. 

This statute, West Virginia Code §§ 46A-6E-1 et seq., provides consumer protection regarding devices purchased to aid disabled persons with communicating, seeing, hearing, or maneuvering. The law creates a one-year implied express warranty on all assistive devices purchased, leased, or delivered in West Virginia. If you, or someone you know, possess an assistive device that is defective, contact the Consumer Division of the West Virginia State Attorney General’s Office at 1 (800) 368-8808 or 1 (304) 558-8986. 

Occasionally a company that makes assistive devices will recall the device because the company learns that the product is defective, a health risk, or otherwise violates standards set by the Food and Drug Administration (FDA). If the assistive device you have is recalled, the company will either notify you directly or will take the necessary steps to notify the public. The FDA oversees the recall to ensure that adequate steps are taken to protect users of the recalled product. 

Additionally, the Federal Trade Commission, the Food and Drug Administration, and other agencies have programs and information available to seniors who feel they have not received what they bargained for. Below is a list of resources available to senior citizens who are experiencing consumer problems: 

Problems Related To: CONTACT: 
Hearing Aids The Federal Trade Commission, 1 (877) 382-4357, http://www.ftc.gov

The Food & Drug Administration, 1 (888) 463-6332, http://www.fda.gov

American Speech-Language-Hearing Assoc., 1 (800) 638-8255, http://www.asha.org
Nursing Facilities Regional Long-term Care Ombudsman, 1 (800) 834-0598 

http://www.wvseniorservices.gov/StayingSafe/LongTermCareOmbudsmanProgram/tabid/81/Default.aspx

WV Department of Health & Human Resources,  

1 (800) 642-8589, http://www.dhhr.wv.gov

US Administration on Aging,  

1 (800) 677-1116, http://www.aoa.gov

Eldercare Locator, http://www.eldercare.gov

LeadingAge (formerly AAHSA) 

1 (202) 783-2242, http://www.leadingage.org

Email: info@leadingage.org,  

The National Consumer Voice for Quality Long-Term Care (formerly NCCNHR) 

1 (202) 332-2275, http://www.theconsumervoice.org
Trying Alternative Medicines,  The Federal Trade Commission, 1 (877) 382-4357, http://www.ftc.gov

The Food & Drug Administration, (888) INFO-FDA; 

Switching Medicines to Save Money, or 1 (888) 463-6332, http://www.fda.gov

National Institute on Aging, 1 (800) 222-2225 http://www.nia.nih.gov

Buying Medicine Online Your county health department, http://www.dhhr.wv.gov/bph

American Pharmacists Association, 1 (800) 237-2742 http://www.pharmacist.com

U.S. Pharmacopeia, 1 (800) 227-8772, http://www.usp.org

AARP, 1 (888) 687-2277, http://www.aarp.org

National Cancer Institute, 1 (800) 422-6237, http://www.cancer.gov

American Cancer Society, 1 (800) 227-2345, http://www.cancer.org
Direct Mail Schemes WV State Attorney General’s Office, 1 (800) 368-8808, http://www.ago.wv.gov

U.S. Chief Postal Inspector, 1 (877) 876-2455 or contact your local postal inspectors office, http://postalinspectors.uspis.gov

The Federal Trade Commission, 1 (877) 382-4357, http://www.ftc.gov

National Institute on Aging, 1 (800) 222-2225, http://www.nih.gov/nia

For more information, see: W. Va. Code §§ 46A-6E-1 to -7 (2015); U.S. Food and Drug Administration, Learn About Medical Device Recalls, http://www.fda.gov/MedicalDevices/Safety/ListsofRecalls/ (last visited June 9, 2015).

When can I cancel a contract that I have already signed?

A person may cancel a contract to buy goods in West Virginia under two circumstances: 

•the contract was made with a salesperson in the home; or 
•the contract is for future delivery of a correspondence course, multiple magazine subscriptions, or a contract for an occupational or business course with a privately owned school. 

Home Solicitation: You may cancel a home solicitation sale contract anytime within three days after the sale. Written notice of the cancellation must be mailed, but not necessarily received, within the three-day period. You cannot cancel if the contract was for goods needed immediately for an emergency or if you cannot return the goods to the seller in substantially as good a condition as when you received them. A home solicitation contract is not valid unless you have signed a statement entitled “BUYER’S RIGHT TO CANCEL,” which informs you of your right to cancel within three days. After you properly cancel, the seller must refund any down payment you made within 10 days. If you have received any goods, the seller must request them within 20 days. After that, you may keep them without charge. 

Magazine Subscriptions/Correspondence Course/Occupational or Business Courses: You may cancel multiple magazine subscriptions. This refers to subscriptions not directly purchased from the publisher for two or more different magazines. You may also cancel a contract for a correspondence course or an occupational or business course. All of these cancellations may be made at any time. 

You must send written notice of your intentions to cancel the contract. You do not have to pay for anything that is delivered to you after you mail the cancellation. In the case of correspondence courses, you cannot be charged an excessive amount for the goods you have already received. 

For more information, see: W. Va. Code §§ 46A-2-132 to -135, -138 (2015).

I recently received an offer from an oil and gas company about leasing my land to them. What should I do next?

Don’t immediately sign the document. Take the time to know what you are signing. Read the document and recognize what the company is trying to accomplish. Be patient with yourself because the document will likely be complicated, and take the time to consider your options. It is not uncommon for one person to own the land while another entity owns the mineral rights; therefore, educate yourself about your status as a mineral rights owner. Educate yourself as much as possible about your holdings in the land as well as about the company who is trying to contract with you. If there are other family members who have ownership rights, find out if they have received the paperwork as well. Try to keep everyone who might be affected by it involved in the conversation relating to the potential contract. 

If you have interest in pursuing a contract or multiple contracts with an oil and gas company, prepare yourself for negotiations. Oftentimes, it is wise to contact a lawyer with knowledge in this industry who can consult with you about negotiation techniques and about the contract. Be wary of a single contract for multiple tracts of land because those tend to cause more problems in the future.

I have basic cable television service. The cable company notified me that it is adding new stations and charging an increased fee. Do I have to pay the extra charge if I do not want the new stations?

Yes. The cable company charges a set rate for a package of stations–the rate is not divisible by the number of stations you receive. The bill you pay is for services for the following month. Your only choice is to either accept the service as the cable company has packaged it, or cancel the service. 

In 1996, Congress repealed certain federal regulations concerning cable television in the Telecommunications Act. However, there are regulations in effect for some cable companies. 

The Public Service Commission (PSC) in West Virginia is the state agency that has authority over all public utilities. Large cable companies that have no competition must submit their rate increases to this board for approval. You may contact the PSC at 1 (800) 344-5113 with complaints or questions, or you may obtain a complaint form online at http://www.psc.state.wv.us/complaints/default.htm. You may also contact the commission by mail: 

Public Service Commission of WV   

201 Brooks Street 

P.O. Box 812 

Charleston, WV 25323 

For complaint filing assistance you can call 1-800-642-8544. 

Right now, the main check on cable rates is this commission. 

For more information, see: The Telecommunications Act of 1996, Pub. L. No. 104-104, § 301, 110 Stat. 110, 114-118 (1996) (amending 47 U.S.C. §§ 521 et seq. (1992)); W. Va. Code §§ 24-2-3, 24-2-3a, 24-2-4a, 24D-1-1 to -27 (2015); Public Service Commission of West Virginia, http://www.psc.state.wv.us/complaints/default.htm (last visited June 8, 2015).

I received a bill from a credit card company which I believe has a mistake in it. How do I get it straightened out?

Federal law allows you to dispute charges that appear on your credit card bills. The law is titled the Fair Credit Billing Act, or the billing error provisions of the Truth in Lending Act. 

You must notify the credit card company of the error within 60 days of receiving the bill, in writing and via the provided address for billing inquiries. The notice must be on a separate sheet of paper from your bill and contain all of the following information: 

•your name, 
•your account number, 
•the nature and amount of the error, 
•the date of the error, and 
•the reasons why you believe it is wrong. 

After the credit card company receives the notice, the company has 30 days to either acknowledge the notice you sent, or resolve the dispute. If the company simply acknowledges the notice, it has 90 days to resolve the dispute. 

The phrase “resolve the dispute” does not necessarily mean that the credit card company is going to agree with you. The company might agree with you, reject your claim, or agree in part and reject the claim in part. If the credit card company agrees, then it must make the corrections to your bill. If it rejects your claim, then it must send you a written explanation or clarification. During the time that the transaction is in dispute, the credit card company cannot charge you interest on the disputed amount, report you to a credit agency, file an adverse credit report, or charge you late fees. When the dispute is resolved, the credit card company must tell you how much you owe and when it is due. 

Good record keeping is critical to being able to use the law to exercise your rights. Keep all documents that support your position, as well as all correspondence with the company. These documents will be useful if the company is in violation of the Truth in Lending Act or the Fair Credit Billing Act. 

It is important to note that this section refers to disputes between you and the credit card company. It does not cover situations where there is a dispute between you and a merchant when you paid by credit card.  

For more information, see: Truth in Lending Act, 15 U.S.C. § 1601-1616 (2015); Fair Credit Billing Act, 15 U.S.C. § 1666 (2015).

…And do I need one?

Maybe. If you are purchasing a home with a mortgage, most lenders will require that you have an escrow account set up to pay for property taxes and insurance. If the lender does not require an escrow account, whether you need one will depend on how well you save money. It can be difficult to plan for paying a large sum at once, like property taxes and insurance, and it can be easier to make the smaller, monthly payments into the escrow account. If you are looking to set up an escrow account for any other reason, you may want to consult with a financial advisor and see if it is worth the cost of paying a broker.  

For more information see: 24 C.F.R. 3500.17; What is an escrow or impound account? http://www.consumerfinance.gov/askcfpb/140/what-is-an-escrow-or-impound-account.html (Last visited June 8, 2015)

What is an escrow account…

An escrow account is an account held by a third party for you, but the funds do not belong to the third party, and are usually used to pay future bills. The most common form of an escrow account is one created by your mortgage lender that is used to pay your property taxes and insurance for your home. For example, if your property taxes are $300 per year, and your insurance is $600 per year, your monthly mortgage payment will include $75 over what you are paying on the actual loan, and that $75 will be deposited into an escrow account that will be used to pay your property tax and insurance every year.  

An escrow account may also be set up with a broker to hold and disburse payments at a later date based on the completion or fulfillment of contractually agreed upon conditions. For example, if you bought a used car off of a private individual and had a one month trial period with the car, you could set up an escrow account to pay off the car at the end of that month.

I paid for auto repairs, and my car still isn’t working properly. What rights do I have?

Consumers have the right to have repairs made in a professional manner. You should first call the problems to the attention of the garage where the repairs were made. If the garage maintains that the problems are unrelated consider getting another opinion before allowing the garage to proceed with additional repairs. 

If the second opinion reveals that the problems are associated with the original repairs, then you can demand that the original garage repair the problem at no additional cost. If they refuse, you can use a written estimate of the cost of the repair as a basis for a lawsuit. 

West Virginia has adopted consumer protection laws that are designed to protect consumers from defective workmanship and fraud. The laws follow the Federal Trade Commission Act and are called the West Virginia Unfair or Deceptive Acts or Practices (UDAP) statutes. 

In court, if your mechanic violated a UDAP statute, you can recover at least $200, no matter how much the repairs were. In addition, the garage may be forced to pay your attorney fees if you win. 

The West Virginia Division of Consumer Protection is under the authority of the State Attorney General. If the Attorney General brings a suit against the garage and wins, you can use this as conclusive proof in your own suit. Consequently, a successful action by the Attorney General makes your case very strong. 

Consumers are advised to report any problems to the Division of Consumer Protection in the Attorney General’s office before proceeding with a lawsuit. The Division of Consumer Protection has a toll free hotline:  

1 (800) 368-8808. (See also Appendix A for a copy of the Consumer Protection Division’s Consumer Motor Vehicle Complaint Form and instructions for filing.) 

For more information, see: 15 U.S.C. §§ 41-58 (2015); Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312 (2015); W. Va. Code §§ 46A-6-101 to -109 (2015); W. Va. Code § 46A-7-101 (2015); Horan v. Turnpike Ford, Inc., 189 W. Va. 621, 433 S.E.2d 559 (1993); Orlando v. Finance One, 179 W. Va. 447, 369 S.E.2d 882 (1988).

I bought a new car, and it has continuously given me trouble. Can I return it and get a new car?

Maybe. West Virginia has a law referred to as the Lemon Law. This law protects consumers by requiring sellers to comply with the automobile warranties they issue. The Magnuson-Moss Warranty Act is a federal law that addresses this issue as well. These laws apply to new vehicles only. They do not apply to used, or previously owned, vehicles. 

If you discover that your new car has a substantial defect soon after you buy it, you must notify the dealer. You are given a reasonable amount of time after you buy the car to realize that the defect is there. If the dealer does not fix that defect within a reasonable period, you are entitled to return the automobile and get a full refund. 

If you do not discover defects until later, you will have to rely on the protection of your warranty. The warranty must be in writing to be protected by the Lemon Law. In addition, the automobile dealer must provide you with written notice that you are protected by the Lemon Law when you buy the car. If the dealer refuses to honor a warranty, then the dealer may also be in violation of the West Virginia Unfair or Deceptive Acts or Practices Statute (UDAP). 

The Lemon Law extends warranties for at least one year after the car was delivered, regardless of the length of the warranty stated in the sales contract. When you discover a defect in your vehicle, you must notify the dealer of any defects and give the dealer the opportunity to repair them in order to benefit from the Lemon Law. The dealer has one chance to fix a defect that may result in substantial bodily injury or death. For any other defect, the dealer has three chances to repair it. Note, however, that this refers to the same defect. Several different, unrelated problems do not come under the “three repairs” rule. If the defect is not fixed after three attempts, you are entitled to a new car. In addition, if the car is under repair for a total of 30 days during the first year after purchase, then you may also request a new car. In either of these two instances, to get the new car you must provide written notice to the manufacturer that the car is defective and cannot be fixed. 

If the manufacturer does not replace or repair the car, then you may sue the manufacturer. You cannot sue the dealer. All costs associated with your inconvenience, as well as attorney fees, may be recovered. However, you must sue within one year of the date the warranty expired. 

In 2005, new legislation was enacted that permits cure offers to be made by merchants or sellers to consumers. A cure offer is a written offer of one or more things, such as money payments, made by a merchant and delivered by certified mail to a consumer claiming to have suffered a loss. In addition to creating a right to cure, the new legislation also requires the consumer to give notice of a violation prior to initiating a lawsuit. 

For more information, see: Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312 (2014); 15 U.S.C. §§ 45-58 (2014); W. Va. Code § 46-2-606 (2014); W. Va. Code §§ 46A-6-101 to -109 (2014); W. Va. Code §§ 46A-6A-1 to -9 (2014); Adams v. Nissan Motor Corp., 182 W. Va. 234, 387 S.E.2d 288 (1989); Chrysler Credit Corp. v. Copley, 189 W.Va. 90, 428 S.E.2d 313 (1993); Bostic v. Mallard Coach Co., 185 W. Va. 294, 406 S.E.2d 725 (1991); West Virginia Attorney General’s Office, Consumer Protection Division: The Lemon Law, http://www.ago.wv.gov (last visited June 8, 2015).

My income is limited. Are there programs that can help me afford my medications?

Yes. Many of the pharmaceutical companies participate in Medication Assistance Programs. Usually, the requirements are that the applicant be suffering from financial hardship, not be eligible for government assistance programs like Medicaid, and not have insurance reimbursement for medication.  

The majority of programs require that you apply through your physician. After the physician contacts the pharmaceutical company, the pharmaceutical company will send the doctor an application on your behalf. Once the physician signs and returns the application, and upon approval of the application, the drugs will be shipped to the doctor’s office. If your doctor has a fax machine, the correspondence between the doctor and the manufacturer can be completed in one day. Many of the manufacturers use Federal Express or one of the other one-day carriers. In the best case scenario, you can have your medicine within a few days. The average amount of medicine shipped for an individual is a three- to six-month supply. 

Contact your local senior center’s State Health Insurance Program (SHIP) counselor for help in applying for low-income pharmaceutical programs. West Virginia SHIP has a statewide toll free hotline (1-877-987-4463) that anyone can call to receive expert advice from a SHIP counselor. 

West Virginia Bureau of Senior Services, http://www.wvseniorservices.gov/GettingAnswers/FrequentlyAskedQuestions/tabid/62/Default.aspx (last accessed June 8, 2015).

What is a Direct Express card and how does it work?

A Direct Express card is a type of debit card that can be used to access your Social Security benefits immediately. If you participate in the program, your benefits are deposited directly onto the Direct Express card. You no longer have to wait for a paper check or even have a bank account. 

There are pros and cons to this program. One positive attribute is that the transactions are more secure than the traditional paper check. Your card is protected by a Personal Identification Number (PIN) so only you should be able to access the funds. If your card is ever lost or stolen, you can pay a small fee to receive a replacement. The funds on the card are FDIC-insured just as those in a bank account would be. Another positive aspect of the card is that using it is easy and convenient. You can make purchases with the debit card anywhere MasterCard is accepted. You can withdraw cash at any retail company, bank, or ATM where MasterCard is accepted. 

Some of the drawbacks of the Direct Express card are that certain transactions will cost you a fee, and some of the things you can do for free with a traditional bank account may also cost additional fees if you use the card instead. For example, if you want a monthly paper statement by mail, you will be charged a small fee per month for this service. You will also be charged if you transfer money from the card into a bank account, and there is a charge if you use the card at an ATM to withdraw cash more than once a month. However, there are many ways to avoid the extra fees if you decide to participate. For example, instead of receiving a monthly paper statement you can access your account online and print it free of charge. You can also get cash-back from retail locations rather than using an ATM.  

You can sign up for the card by calling Direct Express at 1 (800) 333-1795. You can sign up online at http://www.fiscal.treasury.gov/GoDirect. You can also get help signing up through your local Social Security office.  

For more information, see: Social Security Online, Get Your Benefit Payment Through the Direct Express Card, http://www.ssa.gov/pubs/10073.html (last visited June 8, 2015); Direct Express, http://www.fiscal.treasury.gov/GoDirect (last visited June 8, 2015).

I received a notice that the Social Security Administration made an overpayment to me, and now it wants the money back. Do I have to pay back the money even though the overpayment was not my fault?

Essentially, yes. You may have accidentally received an overpayment on your Social Security benefits for several reasons. However, just because the SSA accidentally gives too much money to you does not mean you can automatically keep it. Regardless of whose fault it is, Social Security has the right to collect any overpayment. 

Social Security may ask you to voluntarily return the overpayment. If you do not return the overpayment, SSA may deduct the amount of overpayment from your benefits. If the overpayment is not your fault, SSA can set up a program in which you pay it back in installments. SSA would only take out a portion of your monthly check until the overpayment is paid back. That way you are not hit with the whole amount at one time. 

In addition, if Social Security finds an overpayment, it can stop benefits to anyone who is receiving payments based on that person’s earnings. For example, say Social Security finds that there was an overpayment to your deceased spouse during his or her life. If you are receiving survivor benefits based on your spouse’s earnings, SSA can stop or reduce payments to you until the overpayment is returned. 

If you receive a notice of overpayment, you have a couple of options. One option is to ask for a reconsideration. (See http://www.ssa.gov/online/ssa-561.pdf (last visited June 8, 2015). This is a kind of preliminary appeal claiming that you did not get the overpayment or that you should not have to return it for some reason. This appeal should be made to your local Social Security Administration office. Social Security will review your case and see if there was in fact an overpayment. If you ask for an appeal within 10 days, your benefit payments will continue unaffected until a decision is made on the appeal. Even if you miss the 10-day deadline, you can still file an appeal but you must do it within 60 days of the time you receive the notice of overpayment.  

Another option you may consider is to request a waiver of recovery. (See http://www.ssa.gov/online/ssa-632.pdf (last visited June 8, 2015). The waiver of recovery will state that it would be too difficult for you to pay back the overpayment. There is no time limit on filing for a waiver. In fact, you can even request a waiver after you have paid off the overpayment. However, the sooner you file the sooner the situation can be resolved. You can request the waiver and the reconsideration at the same time. 

It is important to know that any overpayment that is less than $1000 is automatically waived the first time if you ask for it and you were not at fault. That means that Social Security can ask for it back, but if you request a waiver, it will be granted automatically. You simply have to call the Social Security Administration and the recovery should be waived. 

It is not usually worth the administrative costs for the Social Security Administration to pursue overpayments that are less than this amount. So, you can avoid the collection of $1000 the first time by simply asking for the waiver. However, if it happens a second time, the waiver is not granted automatically. Also, you cannot waive a $1000 portion of an overpayment. For instance, if you receive a $1500 overpayment, you cannot pay $500 and then waive the remaining $1000. 

For anything over $1000, the Social Security Administration cannot collect the overpayment if it would be against “equity and good conscience” and it was not your fault. With respect to fault, just because it was Social Security’s mistake does not mean that you are without fault. If you realized that you were getting too much and just kept it, then you are not without fault. You are required to report any overpayment to Social Security. 

If you are without fault, you must also show that collection of the overpayment would be against “equity and good conscience.” This means that you would not have enough money to live on if they collected from your benefits. You are entitled to an oral hearing to determine if this is true. If Social Security finds that you cannot afford to pay back the overpayment, then they cannot collect. 

If you receive a notice of overpayment, you must promptly request an appeal. Any request that you make by phone must be followed up with a written request. If you miss the 60-day deadline, you may be stuck with Social Security’s decision. If you need assistance appealing an overpayment, contact an attorney. 

For more information, see: 42 U.S.C. § 404 (2015); 20 C.F.R. §§ 404.502, 404.506-.509, 404.905, 404.909 (2015); 20 C.F.R. §§ 416.550-.558 (2015); Social Security Online, Chapter 19: Underpayments and Overpayments; Califano v. Yamasaki, 442 U.S. 682, 61 L.Ed.2d 176 (1979); Joan M. Krauskopf et al., Elderlaw: Advocacy for the Aging §§ 15.63-.67 (2nd ed. 1993, 2011-2012 Supplement); Social Security Online, Overpayments, http://www.ssa.gov/ssi/text-overpay-ussi.htm (last visited June 8, 2015).

What is a representative payee, and can the Social Security Administration make me have one?

A representative payee is someone who receives your Social Security benefits. Your representative payee is required to use your Social Security payments for your benefit. Normally, the Social Security Administration (SSA) sends your check directly to you. However, if SSA finds that it would be in your best interest, SSA will appoint a person or entity to act as your representative payee and send your check to that party. 

The representative payee is required to use the benefits for your current maintenance. This means they must use the money for your food, shelter, clothing, etc. A representative payee can be a spouse, a relative, a legal guardian, a non-profit organization, or a nursing home. A creditor of yours cannot be a representative payee except in very limited circumstances. SSA ranks potential representative payees in an order of preference. For instance, your spouse would be preferred over a nursing home. 

Many laws exist that govern the actions of the representative payee. These laws and regulations are designed to prevent a representative payee from fraudulently spending your money. 

SSA presumes that any adult can manage his/her own affairs; however, SSA will accept evidence to determine if you are incapable of handling your monthly benefits. You do not have to be legally incompetent for SSA to appoint a representative payee.  

SSA must inform you of its decision to appoint a representative payee and the name of the potential representative. You may object to either of these decisions. SSA will then review your objection and make a determination. If you disagree with the determination, you can ask for a reconsideration. The reconsideration decision may also be appealed. 

If you want to appeal a decision to appoint a representative payee, or believe that you are the victim of fraud by your representative payee, you may contact your local SSA office or an attorney. 

For more information, see: 20 C.F.R. §§ 404.2001-.2065 (2015); Joan M. Krauskopf et al., Elderlaw: Advocacy for the Aging § 15.94 (2nd ed. 1993); Social Security Online, Representative Payee Program, http://www.socialsecurity.gov/ssi/text-repayee-ussi.htm (last visited June 8, 2015), http://www.socialsecurity.gov/pubs/10097.html (last visited June 8, 2015).

Can my pension affect the amount of Social Security benefits I receive?

Maybe. A pension may reduce your Social Security benefits in two ways. The first way is through the “windfall elimination provision.” This provision applies to people who worked for an employer who did not withhold FICA (Social Security) taxes, such as a government agency, and who also worked at other jobs where they paid Social Security taxes long enough to qualify for Social Security benefits. It also may affect you if you earned a pension from employment in a foreign country. 

The second way your pension may reduce your benefits is the “government pension offset.” Due to this provision, your Social Security spouse or widow’s benefits may be reduced if you receive a pension from a federal, state or local government based upon work where you did not pay Social Security taxes. As a result, your spouse or widow(er) benefits may be reduced by two-thirds of the amount of your government pension. 

Certain exceptions to both provisions are available. To find out if your pension will affect your Social Security benefit amounts, contact the Social Security Administration office in your area or see the official Social Security web site at http://www.ssa.gov. For information about the windfall elimination provision, see http://www.ssa.gov/pubs/EN-05-10045.pdf (last visited June 8, 2015). For more information about the government pension offset, see http://www.ssa.gov/pubs/EN-05-10007.pdf (last visited June 8, 2015).  

For more information, see: Social Security Online, http://www.ssa.gov (last visited June 8, 2015).

Can I continue working while on SSDI?

Maybe. Social Security sets the maximum amount that you can be making at the time you apply for benefits at $1090 a month, or $1820 if you are blind. If you are making more than that, you will not be eligible to apply for Social Security Disability Benefits.  

Once you apply for SSDI and are given the benefits, you are given a 9 month trial work period to see if you can continue working. During the trial period, you will receive your full Social Security Benefits, regardless of how much you earn, as long as you report your work activity and continue to have a disabling impairment. After the trial work period is over, you have 36 months that you can continue workings and receiving benefits, so long as you are not earning what Social Security considers substantial gainful activity. In 2015, Social Security considered your earnings to be a substantial gainful activity if you were making more than $1090 a month, or $1820 if you are blind. Be aware that the figures for what is considered substantial gainful activity change every year.  

If your benefits stop because you are earning above the substantial gainful activity amount, you will have a five year period in which you can ask Social Security to reinstate your benefits immediately if you find that you are unable to continue working because of your condition. You will not need to file a new disability application, and you will not have to wait for your benefits to start while your medical condition is being reviewed to make sure you are still disabled.  

Also, if you have work expenses that are related to your disability, those expenses can be deducted from your claimed earnings to possibly bring you under the substantial earnings mark. Expenses could include transportation to and from work, a wheelchair, specialized work equipment, counseling services, and prescription drug copays. These expenses can be deducted even if they also help you outside of work. 

For more information, see: 20 C.F.R. 416.971-976 (2015); Social Security Online: The Work Site, http://www.ssa.gov/work (last visited June 4, 2015); Social Security Online, Working While Disabled-How We Can Help, http://www.ssa.gov/pubs/EN-05-10095.pdf (last visited June 4, 2015); Social Security Online, Your Ticket to Work, http://www.ssa.gov/pubs/EN-05-10061.pdf (last visited June 4, 2015).

If I continue to work after I retire, how much can I earn without affecting my monthly Social Security benefit amount?

Under legislation passed in April 2000, Social Security withholds benefits if your earnings exceed a certain amount only if you retired before your normal retirement age. The normal retirement age is 65 for those born before 1938 and gradually increases to 67 for each year after 1937.  

If you retire on or after your normal retirement age, your benefits amount will not be affected by extra earnings, no matter how much you make. If you retire early and your earnings exceed a certain level your benefits will be reduced until you reach your normal retirement age. Your benefits may be reduced because of earnings before you reach your normal retirement age, but once you reach that age, your benefits will no longer be reduced if you work. However, it is important to remember that your benefits will still be reduced because you chose to retire early. 

If you retire early and continue to work, the amount your benefits will be reduced depends on how much you earn. Contact your local Social Security Administration office if you have any questions about how working past retirement will affect your benefits. You can also contact the SSA by calling 1 (800) 772-1213 or visit the website at http://www.ssa.gov

For more information, see: Social Security Online, Retirement Planner, http://www.ssa.gov/planners/retire/whileworking.html (last visited June 4, 2015); Social Security Online, Automatic Increases, http://www.ssa.gov/OACT/COLA/rtea.html (last visited June 4, 2015); 20 C.F.R. § 404.430 (2015).

What are Divorced Spouse benefits, and how do I become eligible to receive them?

You may be able to receive Divorced Spouse benefits based on your divorced spouse’s work record. You must have been formerly married for 10 years, divorced for at least two years, and be at least 62 years old. In addition, your former spouse must be at least 62 years old and eligible for retirement benefits, or receiving disability. You also must be unmarried. 

To receive divorced spouse benefits, you cannot be entitled to benefits on your own record that are 50% or more of what your former spouse’s full benefits are. For example, if you receive retirement benefits of $201 per month and your divorced spouse receives $400, you would not be eligible for benefits on your spouse’s record because $201 is more than 50% of $400. 

Even if your divorced spouse dies, you can still receive benefits if the above is true except for a few differences. You only have to be at least 60 years old, or 50 and disabled. You can still receive these benefits if you remarry after age 60. Furthermore, your benefits cannot be greater than your divorced spouse’s full benefits.

What are surviving spouse benefits and how do I become eligible to receive them?

If your spouse dies, you may be able to receive widow’s benefits. First, your spouse must have been eligible for retirement or receiving disability benefits. Second, you must meet a variety of additional requirements. You must meet one of the following conditions: 

•you were married to your spouse for nine months immediately before his/her death; 
•you were married for less than nine months and the death was accidental, or you were previously married for nine months; 
•you and your spouse had a natural child, or you adopted a child when the child was under the age of 18; or 
•in the month before your spouse’s death, you were entitled to or were receiving benefits based on your spouse’s earnings. 

If you meet one of the above conditions, then you must meet all of the following three requirements: 

•you are 60 years old, or 50 and disabled; 
•you are not receiving an entitlement equal or greater to the amount that your spouse received; and 
•you are unmarried. 

If you are also eligible for benefits based on your own record, you will receive the higher amount of benefits based on your record or benefits based on your spouse’s record, but not both. In addition, any income that you receive can decrease the amount of your benefits. 

You may be entitled to a lump-sum death payment. This is usually three times your spouse’s monthly benefits or $255, whichever is less. 

A note on Same Sex Couples: After the U.S. Supreme Court’s ruling in 2013 that struck down a provision in the Defense of Marriage Act (DOMA) that defined marriage as between one man and one woman, the state of SSA spousal benefits for same sex couples is in flux. However, if you meet all of the other standards set forth by the SSA regarding benefits, you are encouraged to apply. By applying now, you set your application date which can in turn determine your start date for benefits once the legal issues surrounding same-sex couples are resolved on the national and state levels. 

For more information, see: 42 U.S.C. §§ 402(e), (f), (i) (2015); 20 C.F.R. §§ 404.335, 404.338, 404.390-.392 (2015); Joan M. Krauskopf et al., Elderlaw: Advocacy for the Aging §§ 15.31-.34, 15.38 (2nd ed. 1993, 2011-2012 Supplement); Social Security Online, Survivors Planner, http://www.ssa.gov/planners/survivors/onyourown2.html (last visited June 4, 2015); Burks v. Apfel, 67 F.Supp.2d 1203 (1999), http://www.nclrights.org/wp-content/uploads/2013/08/Post-DOMA_Social-Security.pdf. (Last visited on June 4, 2015). 

 

What are Supplemental Security Income (SSI) benefits and how do I become eligible to receive them?

SSI differs from SSDI in that SSI is a type of welfare program for disabled people. You do not have to have worked a certain amount of time in order to be eligible for SSI benefits. Instead, you must meet certain income and asset guidelines. Unlike Disability Insurance Benefits, there is no five-month waiting period before you can receive benefits, but you still must have either an impairment that has lasted or is likely to last at least 12 months, or be 65 or older.

What are Social Security Disability Insurance (SSDI) benefits, and how do I become eligible to receive them?

If you have physical or mental impairments that prevent you from working, you may be eligible for Social Security Disability Insurance benefits. This disability benefit is based on your work record. You must have worked 5 of the last 10 years to be eligible for disability benefits. 

If you have an impairment that has lasted, or is likely to last, at least 12 months and that prevents you from working, then you may be eligible for disability benefits. If you apply for disability benefits, there is a five-month waiting period before you can receive benefits. If you receive worker’s compensation, it could reduce the amount of disability benefits for which you are eligible.

What are Social Security Retirement Benefits, and how do I become eligible to receive them?

What people most commonly call “Social Security” is Social Security Retirement benefits. These benefits are based on either your work record, your deceased spouse’s work record, or your divorced spouse’s work record. If you have worked enough throughout your life, you can collect retirement benefits. These benefits are funded through the Federal Insurance Contributions Act (FICA) deductions in your payroll checks. If you have worked at least 40 quarters (10 years), you may be eligible for retirement benefits. 

The benefits can be collected after you reach your retirement age. If you were born before 1938, retirement age is 65. After that, the retirement age rises slightly depending on your age. The oldest retirement age is 67. You can start collecting early retirement benefits at age 62. However, your monthly benefits will be permanently lower than it would be if you had waited to retire until your retirement age because you are collecting them over a longer period of time. Theoretically, early retirement will give you approximately the same total Social Security benefits over your lifetime but in smaller amounts to take into account the longer period of time you will receive them. How much your benefits are reduced if you retire early will be based on how much earlier you stop working than your normal retirement age. The Social Security Administration has a calculator you can use to figure out the effect of your age on your retirement benefits at https://www.socialsecurity.gov/OACT/quickcalc/early_late.html.

If you have other income such as pension, or you continue to work after you reach your retirement age, your retirement benefits will be reduced. Your benefits will not be taken away totally, but depending on how much you earn, they can be reduced. 

Social Security Retirement benefits will not automatically be sent to you when you reach retirement age; you must apply for them. You may apply for benefits 3 months before you want the payments to begin. The earliest you may receive benefits is in the first full month you turn 62. This means payments will not start until the month after your 62nd birthday unless your birthday falls on the first or second day of the month.  

You can apply for benefits at your local Social Security Administration office, by calling 1 (800) 772-1213, or applying online at http://www.socialsecurity.gov/applyonline

For more information, see: Social Security Online, http://www.ssa.gov (last visited June 4, 2015); Social Security Online, Retirement Planner, http://www.ssa.gov/planners/retire/applying1.html (last visited June 4, 2015); Social Security Online, Retirement Age, http://www.ssa.gov/planners/retire/ageincrease.html (last visited June 4, 2015).

What is Social Security?

Social Security is the government program that provides benefits to eligible retirees, people with disabilities, divorced spouses, and survivors of relatives who have died. The program is primarily funded by taxes gleaned from worker’s paychecks.

What happens to my digital media like pictures and profiles on Facebook, Instagram, and Twitter after I die?

It depends. Different companies have different policies regarding what happens to a person’s online presence after they die. For example, Facebook’s policies frequently change, but currently if Facebook is notified of a person’s death, the company presents the family of the deceased person with two options. The family can either close the account (which would mean losing all the pictures and other digital memorabilia) or turn that page into a memorial page. The executor of a will does not have access to your digital media under any of the companies’ policies at this time.  

Some companies suggest making digital or hard copies of photos or other memorabilia associated with your accounts in order to ensure that treasured memories will not be lost upon your death. Another suggestion is to create a list of passwords for your accounts and give that list to a very trusted source who you give permission to access your accounts upon your death. Please note however, that the second option creates a potential for abuse of that information. 

For more information, see: www.aarp.org/home-family/personal-technology/info-2014/protect-personal-online-data.html (last visited Jun 4, 2015).

What is a pre-paid funeral contract?

With a pre-paid funeral contract, you can take care of your funeral expenses and make decisions regarding how you want your funeral to be handled. Some contracts work like an insurance policy; you pay installments until your death, and you get the services no matter how much you pay. Other contracts require you to pay either a lump sum or a total amount before you are entitled to the burial goods and services. Before you sign a contract, carefully read the document and be aware of its provisions. 

In the past, senior citizens have been victimized by fraudulent pre-paid funeral contracts. If not regulated, the seller of the contract could easily spend your money leaving no money for your funeral services when you need it. 

West Virginia regulates pre-paid funeral contracts by law. A person selling funeral services must be licensed and have a certificate from the state authorizing her to sell pre-paid funeral contracts. In addition, sellers of pre-paid funeral contracts cannot solicit customers at hospitals, nursing homes or rest homes, nor can they solicit relatives of persons whose death is pending.  

Your contract must be protected by an insurance policy or a trust fund. In a trust fund situation, the seller deposits your money in a trust. The trust is managed by a trustee. The trustee must be impartial and protect your money. Of course, it will cost money for the trustee to manage the trust. The law allows the seller of the pre-paid funeral contract to use 10% of your money to pay the trustee and other costs. 

When the trustee or insurance company receives a copy of your death certificate, and is satisfied that the funeral services have been performed, he or she pays the seller of the contract. If the funeral home does not provide the services, the money must be returned to the estate of the deceased within 10 days.  

If you want to cancel a pre-paid funeral contract before your death, you may do so. You have to notify the seller in writing. The seller must then notify the trustee within 10 days. The trustee must return your money within 30 days. 

When you buy a pre-paid funeral contract, make sure that your contract is filed with the Attorney General’s office. When you file your contract, you will have to pay a recording fee that goes into a fund called the Preneed Guarantee Fund. The fund reimburses people who lose money in a pre-paid funeral contract. The fund is used only for trust fund contracts. The insurance commission handles contracts that are protected by an insurance policy. 

If a seller violates a law in this area, criminal charges may be filed against him or her. If you think that a funeral home has committed a violation, contact the Consumer Protection Hotline in the Attorney General’s Office at 1 (800) 368-8808.  

For more information, see: W. Va. Code §§ 47-14-1 to -14 (2015); National Funeral Services, Inc. v. Rockefeller, 870 F.2d 136 (4th Cir.), cert. denied, 493 U.S. 966, 110 S.Ct. 409, 107 L.Ed.2d 374 (1989).

My spouse died and his/her name is still on the deed to our home. Do I have to change the deed?

No. Depending upon how the property was owned, a number of procedures will take care of the ownership of your home. The different procedures depend on whether the property is either jointly owned or completely owned in the name of your spouse, and whether or not there is a will. 

If the property is jointly owned, meaning you and your spouse are joint tenants, it will be owned either with or without right of survivorship. If it is owned with survivorship, the entire property automatically transfers to you as the surviving spouse when your spouse dies. Anyone who looks at the deed will know that if either you or your spouse has died, then the other spouse will possess the property in full ownership. 

If the property is jointly owned but without survivorship, the deceased spouse’s portion will pass through the probate process. In the probate process, the court must decide whether the will is valid. This procedure is often called proving the will. You will then acquire the property after the probate process. As a result, a person looking just at the deed cannot know that you now have complete ownership. Only the will or probate records will reflect the change in ownership.  

If there is a will, the will records the transfer of the property. If there is no will, the probate records themselves will reflect that you now have complete ownership because the property passed through intestate succession. Dying intestate is dying without a will. 

At no time are you required to go and change the deed. The probate records, the will, or the deed itself will reflect your complete ownership. However, if you transfer the property, your new deed should state how you acquired the property in order to maintain clarity in the chain of title. Drafting a deed may seem like something you can do yourself without hiring an attorney, but paying a few hundred dollars for an attorney to handle the matter may turn out to be a great investment if he or she identifies a defect in your title. 

For more information, contact your local clerk of the county commission, or see: W. Va. Code § 41-5-17 (2015); Cary v. Riss, 189 W. Va. 608, 433 S.E.2d 546 (1993); see generally, W. Va. Code §§ 40-1-8 to -9 (2015).

What is a living trust?

A living trust is a written document that allows you to control the distribution of your property after your death, like a will. It differs from a will in that a living trust takes effect during your lifetime, as soon as you transfer property or money into the trust’s name.  

As the grantor or creator of the trust, you put a certain amount of money or property into the trust for a beneficiary. You also name someone to be the trustee. The trustee is responsible for managing the property or money in the trust while you are alive. Any responsible individual can be a trustee; you can name yourself, another person, or an entity, such as a bank. In a living trust, you also name a backup trustee to manage the property and distribute it according to your wishes after your death. The role of the backup trustee is similar to that of the personal representative named in your will. 

Living trusts are particularly appealing to some individuals because, unlike a will, property or money placed in a living trust does not generally have to go through probate. In addition, you can transfer money more privately using a living trust. A will is a public document as soon as it is submitted for probate. Another advantage of a living trust is that you can name someone to manage your assets in the event that you become unable to do so.  

A disadvantage of having a living trust is that you must transfer money or property into the trust when you create it. Therefore, you may find yourself unable to get to this money if you need it. AARP cautions against companies that use telemarketing and other techniques to sell living trust “kits” or “packages.” The AARP notes that these companies often charge more than an actual attorney would charge and greatly exaggerate the costs and delay of our state’s probate system. Often, the people who write these documents are not attorneys, and even if they are, they may not be licensed in West Virginia. In such circumstances, the living trust created by these people may not conform to state law.  

To be effective, a living trust should be individualized to your particular needs and wishes. Living trusts sold over the phone in a package or kit are generally not personalized to handle your particular situation adequately. Sometimes, people selling these kits will imply that the AARP endorses their product; however, the AARP does not sell or endorse any living trust product. 

A living trust can be an effective estate planning tool for people in certain kinds of circumstances; however, it is not appropriate for most people. Whether a living trust is right for you depends upon your particular circumstances, and consulting a trust attorney for personalized advice can not only help you decide whether a trust is right for you, but how to be sure all the assets you want to include in a trust are properly titled.  

For more information, see: AARP, The Truth About Living Trusts, http://www.aarp.org/money/estate-planning/info-04-2009/truth_about_living_trusts.html (last visited June 4, 2015).

Can I administer a small estate by myself, or should I get an attorney?

The West Virginia legislature has made it much easier for a person to administer a small estate without an attorney. If the estate is small (under $100,000) or there is only one beneficiary and there are no outstanding claims, you may be able to settle the estate by yourself.

When the estate is valued under $100,000 but there is more than one beneficiary, an administrator or the executor of the will is appointed. Then the executor must fill out an appraisement which puts a value on all the deceased’s assets. When the administrator turns in the appraisement, the county clerk will put an ad called a Notice of Pending Estate in the local newspaper once a week for two successive weeks. The administrator must send a copy of the notice to the surviving spouse, beneficiaries, trustees, and/or creditors of the person who died. If the surviving spouse, beneficiaries, etc., have claims for payment, they must make them within 30 days of receiving the notice. 60 days after the first ad is published in the local newspaper, if there are no claims for payment filed against the estate, the estate will be deemed settled.

When there is only one beneficiary, regardless of the size of the estate, there is a simplified procedure as well. After the appraisement is filed, the clerk runs a Notice of Unadministered Estate in the newspaper. If after 60 days there are no claims for payment against the estate, the estate is automatically settled. In actuality, there is no administration of the estate in this situation.

Although administration of estates is easier now than it used to be, there is always the possibility that complications may arise. If there are outstanding claims, and a simple administration is not possible, you will want to have the assistance of a lawyer even if the estate is small. In addition, even if there are no complications, it is wise to consult a lawyer to see if it is safe for you to proceed alone.

For more information, see: W. Va. Code §§ 44-2-1 to -29 (2015); W. Va. Code §§ 44-3A-1 to -44 (2015); W. Va. Code § 44-1-14 (2015); W. Va. Code § 44-3A-4a (2015); In re Scott’s Estate, 122 W. Va. 352, 9 S.E.2d 528 (1940); In re Estate of Thacker, 152 W. Va. 455, 164 S.E.2d 301 (1968).

What is a self-proving will?

A self-proving will has sworn statements called affidavits attached to the will. These affidavits are from the witnesses. They state that, according to the witnesses, the will was signed by the testator and that the testator had the mental capacity to execute a will. A notary public then certifies that the affidavits are signed by the witnesses.  

It is a good idea to have these affidavits attached to your will. When a will is probated, it must be proved. To prove a will, a court must determine that the will meets the requirements set by law. The will must be proven before the instructions in the will can be followed. One requirement set by law is that a testator must have the mental capacity to execute a will. Another requirement is that the will must be signed by the testator in front of two witnesses. The witnesses would then be required to testify at probate that the testator did have the mental capacity to execute the will. 

However, if you have a self-proving will, the witnesses are not needed for probate. The affidavits substitute for having actual testimony from the witnesses. A self-proving will helps avoid the difficulty of tracking down witnesses to a will. 

If the will is ever contested, however, the affidavits cannot be used. That is to say, if anyone objects and says that the testator did not have the mental capacity to execute the will, then the affidavits are not adequate. In such situations, the witnesses are required to testify. 

For more information, see: W. Va. Code § 41-5-15 (2015); Christopher Vaeth, Annotation, Proper Execution of Self-Proving Affidavit as Validating or Otherwise Curing Defect in Execution of Will Itself, 1 A.L.R.5th 965 (1992); Thomas M. Fleming, Annotation, Sufficiency of Evidence to Support Grant of Summary Judgment in Will Probate or Contest Proceedings, 53 A.L.R.4th 561 (1987); Rush v. Brannon, 82 W. Va. 58, 95 S.E. 521 (1918).

Does my will become invalid if a witness to my will dies?

No. When a witness signs a will, he or she is saying that the testator has testamentary capacity. This signature creates a presumption that the testator had the necessary mental capacity when he or she signed the will. If the witness dies, this presumption stands and the will is still good. 

However, at probate, a will must be proved. To prove a will, a court must determine that the will conforms to the guidelines set by law. One guideline is that the testator must have had the mental capacity to execute a will. Witnesses are needed to testify to the testator’s mental capacity at the time the testator signed the will. Of course, if the witness has died, then he or she cannot testify. The presumption still remains, but clearly the will is not as strong as if the witness could testify. 

One way to avoid this problem is to have a self-proving will. A self-proving will has signed statements called affidavits attached to the will. These affidavits allow you to avoid having to track down witnesses for the probate, even if they are still living.  

For more information, see: W. Va. Code § 41-5-15 (2015); Martin v. Thayer, 37 W. Va. 38, 16 S.E. 489 (1892); 20 Michie’s Jurisprudence Wills § 37 (2009).

Is a will that is executed in another state valid after I move to West Virginia?

A will that you executed in another state may not be valid in West Virginia. A will is executed when it is signed by the testator and by witnesses. Wills must conform to the law of the state where the will is probated; the law of the state where a will is created doesn’t matter if the will is probated in a different state. If the laws differ, a valid will in another state may not be valid in West Virginia.  

For example, say you have your will executed in another state. That state’s law may not require witnesses to sign a will signed by the testator. If you move to West Virginia and the will is not signed by witnesses, it may no longer be valid because West Virginia requires that most wills be signed by two witnesses. 

If you have a will that you executed in another state, you should check with an attorney in West Virginia to see that all of the requirements for a will in West Virginia are met. 

For more information, see: In re Estate of Briggs, 148 W. Va. 294, 134 S.E.2d 737 (1964); Woofter v. Matz, 71 W. Va. 63, 76 S.E. 131 (1912); Lotz v. Atamaniuk, 172 W. Va. 116, 304 S.E.2d 20 (1983); 20 Michie’s Jurisprudence Wills § 3 (2009).

Can I make a will in West Virginia if I own property in another state?

Yes, but the law governing the property may differ depending on what type of property you have. Real estate is treated differently under the law than other types of property. Real estate will transfer according to the law of the state in which the land is located. All other types of property will transfer according to the law of the state where the person lived. 

If you own real estate in another state, you must be certain of whether that state’s law will allow the property to transfer according to your will. You should check with an attorney practicing in the area where your property is located to see if your will is valid there. 

For more information, see: In re Estate of Briggs, 148 W. Va. 294, 134 S.E.2d 737 (1964); Woofter v. Matz, 71 W. Va. 63, 76 S.E. 131 (1912); Lotz v. Atamaniuk, 172 W. Va. 116, 304 S.E.2d 20 (1983); 20 Michie’s Jurisprudence Wills § 3 (2009).

What is my share of my spouse’s estate if my spouse dies without a will?

Dying without a will is called dying intestate. In most circumstances, a spouse will receive all of the estate when the other spouse dies intestate. However, there are two circumstances in which the surviving spouse will not take the entire estate. 

First, the surviving spouse will take less than the entire estate when he or she has a child from another marriage and the couple has children together. An example of this situation would be where the deceased spouse, in addition to having children with you, is a step-parent of your child. In these situations, the surviving spouse takes 3/5 of the estate, and the children common to you both (but not step-children) take 2/5. 

The other instance occurs when the spouse who dies has a child from another marriage. This situation would occur if you, as the surviving spouse, are the step-parent of the deceased spouse’s child. In such circumstances, the child would take 1/2 and the surviving spouse would take 1/2.  

When a person dies intestate, any property that does not go to the surviving spouse will pass down in the following order: descendants, parents, brothers and sisters, grandparents, and other relatives.  

For more information, see: W. Va. Code § 42-1-3 (2015); John W. Fisher II, Intestate Succession and Elective Share Law, West Virginia Continuing Legal Education (1993).

My spouse died and I was almost completely left out of my spouse’s will. Is there anything I can do?

The law protects surviving spouses. If you are not satisfied with your share under the will, you may elect against the will, which means you may petition the court to disregard the will and award you an amount of your spouse’s estate set by law. You may only petition for this elective share within nine months of your spouse’s death or within six months of the probate of the estate, whichever is later.  

The legislature passed laws to prevent one spouse from disinheriting another. One protection from disinheritance is the elective share provision. Another is the notification requirement. 

The elective share provision allows a spouse to elect against the deceased spouse’s will to collect an amount of the estate set by law. The amount a spouse can take depends on the length of the marriage. After 15 years, the spouse can collect the largest amount–50%. The amount is taken from the augmented estate. Many factors are considered in determining what makes up the augmented estate, and then in determining how much would go to the surviving spouse. The augmented estate includes all property from which the deceased benefitted. The surviving spouse’s wealth is also considered. 

The notification requirement also protects surviving spouses. A person who transfers land must notify his/her spouse. This notice is required so that your spouse cannot give his/her land away without your knowing about it. 

For more information, see: W. Va. Code §§ 42-3-1 to -2, 42-3-4, 42-3-7, 43-1-2 (2015).

Do I have to include my spouse in my will?

You do not have to include your spouse in your will, but it doesn’t necessarily mean that your spouse cannot get anything from your estate. If you leave your spouse out of your will, your spouse may be able to elect against the will. Elective share provisions are part of our law that attempts to prevent the disinheritance of a spouse. This means that your spouse may be able to collect a percentage of your estate as set by law. The amount the spouse will collect is called the elective share amount. 

The elective share amount depends on the number of years that you have been married. The highest percentage your spouse can collect from your estate is 50%, which is the share allotted after 15 years of marriage.  

The law is designed to protect surviving spouses. Thus, if you choose to leave your spouse out of your will, your spouse may be entitled to a share of your estate anyway. If this happens, it could leave others in your will with less than you had intended. 

For more information, see: W. Va. Code §§ 42-3-1 to -3) (2015); Kidwell v. Kidwell, 189 W. Va. 307, 431 S.E.2d 346 (1993); Mongold v. Mayle, 192 W. Va. 353, 452 S.E.2d 444 (1994). 80 Am. Jur. 2d Wills §1401, Components of elective share; expenses; 97 C.J.S. Wills §2146.

Do I have to register my will at the courthouse?

No. Wills do not have to be registered before probate in West Virginia. The will is filed with the clerk of the county commission after the death of the testator. Wills are kept by the testator until death. If someone else has the will, that person must deliver it to the clerk or to the executor named in the will within thirty days after the death of the testator is known to him. If the will is delivered to the executor, the executor must then deliver it to the clerk within a reasonable time or offer it for probate. If delivered to the clerk, the clerk will notify both the executor and the people named in the will once the will is received.  

For more information, see: W. Va. Code §§ 41-5-1 to -3 (2015); Cary v. Riss, 189 W. Va. 608, 433 S.E.2d 546 (1993); In re Winzenrith’s Will, 133 W. Va. 267, 55 S.E.2d 897 (1949); 80 Am.Jur. 2d Wills § 915 (2012); 95 C.J.S. Wills § 474 (2012)

Where is the best place to keep my will?

It is important to choose a safe place where someone can easily locate the will after your death. A safe deposit box is a good, safe place to keep a will, but only if your heirs know the will is there and can get to it after you die.  

When choosing a bank in which to rent a safe deposit box, you need to find out how the bank will control the box after your death. Some banks will not allow anyone except a court-appointed administrator to open the box to retrieve the will. This policy may cause difficulty and delay in settling your estate. Other banks allow a family member to remove the will in the presence of bank officials. If your will is kept in a safe deposit box at the bank you should make sure the executor named in your will has access to it after your death.

Is there a way to transfer my house and land after I die without it going through probate?

Yes. As of June 1, 2014, a new law allows a property owner to write a deed with a “transfer on death” beneficiary. It creates an automatic transfer to the beneficiary upon the death of the property owner similar to a joint tenancy, but it is a bit different. The main difference between this deed and joint tenancy is that the property owner retains ALL of the rights of ownership while living, including the right to live in the house, the right to sell the house, and the right to revoke the deed altogether, among others. This new law, referred to as the Transfer on Death Deed Act, creates a way for people to pass houses and land onto their heirs while avoiding probate and Medicaid estate recovery.  

The Transfer on Death Deed has a couple specific differences from a more traditional deed. First, the Transfer on Death deed must state that the transfer of land is to occur upon the transferor’s death. Second, in order for the deed to be valid, the Transfer on Death deed must be recorded in the office of the clerk of the county commission where the property is located BEFORE the transferor’s death. 

This new type of deed can be largely beneficial to many seniors because they have the option to retain all of their rights of ownership in their homes and land during their lifetime so the possibility of abuse by a beneficiary is limited. Also, this type of deed is helpful for seniors who want to pass real property to their beneficiaries while avoiding probate and Medicaid estate recovery.  

For more information, see: W.Va. Code 36-12-1 through 36-12-17

Will my beneficiaries have to pay taxes on their inheritance?

Maybe. Effective as of the end of 2012, Congress passed the American Taxpayer Relief Act of 2012, which provides an exemption from federal estate and gift taxes on estates with assets up to a certain value. The exemption will cover estates that contain assets worth $5 million, although this amount is indexed for inflation. As a result, the exemption, indexed for inflation, is $5.43 million per person in 2015. In addition, there are deductions for most (but not all) amounts left to a surviving spouse or to charity. In determining whether your estate is worth $5.34 million, you may need to take into account assets such as life insurance payable on your death, retirement benefits, and gifts that you made during your lifetime. If your estate exceeds the available exemption and deduction amounts, then a federal estate tax of up to 40% will be assessed on the remaining amounts. 

A husband and wife each have their own $5.43 million exemption. In some cases and with proper planning, one spouse may use the exemption that his or her predeceased spouse did not use during their lifetime. (Note: this is called “portability” and means that a married couple can pass $10.86 million free of tax at this point. However, it gets very complicated if you have second marriages and such). 

West Virginia does not currently have an estate or inheritance tax. Many other states, however, do have such taxes, which are imposed in addition to the federal estate tax. You may need to pay estate or inheritance taxes in another state if you are a part-time resident of that state or if you own property located in another state. 

We would recommend that you consult with an attorney if you are concerned that your estate may be affected by the federal estate taxes, if you are worried about having to pay tax in another state, or if you have a complicated family arrangement (such as second spouses with children). 

For more information, see: 26 U.S.C. §§ 2001-2058 (2015); The American Taxpayer Relief Act of 2012, Pub. L. 112-240.

When I die, how will my will be used to distribute my property?

Before you die, you are in charge of making sure your will is kept in a safe place or with a trusted person. Upon your death, your will is likely to be delivered to the clerk of the county commission. If someone else has your will, they must deliver your will to the executor named in the will or the clerk within thirty days after your death is known to the person in possession of your will. If your will is given to the executor, the executor must then deliver it to the clerk within a reasonable time or file a petition in court to seek appointment of your personal representative. 

After your personal representative gains control to execute your will, he/she will determine what your assets are, pay off your debts, and distribute the rest of your estate to your beneficiaries. The process of your executor administering your will is called probate. 

For more information, see: W. Va. Code §§ 41-5-1, et seq. (2015).

Can a beneficiary of a will also be a witness to the will?

Yes, but it wise to choose witnesses who are not beneficiaries under the will. Traditionally, the beneficiary of a will could not be a witness. Now, however, West Virginia law has a purging statute. This law allows beneficiaries to be witnesses so long as they forfeit their share of the will. Basically, the statute means that if a beneficiary is a witness, the will is still good and all the other heirs will take their shares according to the will. However, if the witness who is also a beneficiary is needed to prove the will, the beneficiary must forfeit his or her inheritance under the will for the will to still be valid. 

Before property can pass according to a will, the will must be proven at the probate of the estate. To prove a will, a court must determine whether the will meets the requirements set by law. When a witness signs a will, he or she is agreeing to come back later and testify at the proving of the will. But a witness cannot testify to the validity of a will if he/she is incompetent. A witness is incompetent if the law does not allow him/her to be a witness. A witness who is also a beneficiary is competent only if he/she forfeits his/her inheritance in the will. Modern wills typically include a self-proving affidavit attached to the will signed by the witnesses so neither is required to come back and testify at the time of probate.  

While at least two witnesses have to sign the will, only one is necessary to prove the will. Consequently, a beneficiary who is a witness would have to forfeit his inheritance only if the other witness cannot prove the will. Thus, it is possible to have a valid will with a beneficiary as a witness, but it is wise to avoid using beneficiaries as witnesses in order to escape any problems. 

For more information, see: W. Va. Code §§ 41-1-3, 41-2-1 (2015); Webb v. Dye, 18 W. Va. 376 (1881); Davis v. Davis, 43 W. Va. 300, 27 S.E. 323 (1897).

Can a beneficiary of a will also be an executor (personal representative) of the will?

Yes. You are advised to name someone you trust to be executor, or personal representative, of your estate. Many times you also wish to include that person in your will. Naming a beneficiary to be the executor of your will is a perfectly acceptable practice in West Virginia. However, any person appointed executor has her primary responsibility to the estate. If there is any conflict between the personal interests of the executor and the interests of the estate, the executor can be removed. In addition, the executor can be sued by other heirs for acting in his or her own best interest at the expense of the estate. 

The estate is further protected by requiring an executor to post a bond equal to the value of the estate. The bond is used as security if the executor does anything improper with the estate’s assets. The necessity for this bond may be waived in the will.  

Some states do require executors to be independent. If you move to another state, check the law of the state to be certain that you named an appropriate executor. In West Virginia, being a witness to a will does not mean that you cannot also be named an executor. 

For more information, see: W. Va. Code §§ 41-2-3 , 44-1-3, 44-1-6 to -8, 44-5-5 (2015); Hensley v. Copley, 122 W. Va. 621, 11 S.E.2d 755 (1940); Rayburn v. Rayburn, 34 W. Va. 400, 12 S.E. 493 (1890).

What does the executor of a will do?

The executor is the person you appoint to carry out the instructions of your will. The executor of a will collects all the assets of the estate, pays off the debts, and then distributes the assets of the estate according to the will. This distribution is called the administration of the estate. Your executor need not be an attorney, and may be able to administer the estate without an attorney, depending on the complexity of the estate and distribution. 

A good executor is one who will diligently and carefully handle the details of administering the probate of your estate for the benefit of your beneficiaries. Usually a close family member such as a spouse or child is named executor. However, you may name any trusted adult as executor. 

For more information, see: W. Va. Code §§ 44-1-1 to -15 (2015); Smith v. Hamer, 135 W. Va. 380, 64 S.E.2d 481 (1951); 8A Michie’s Jurisprudence Executors and Administrators §§ 2, 7-11 (2009); Wanda Ellen Wakefield, Annotation, Adverse Interest or Position as Disqualification for Appointment of Administrator, Executor, or Other Personal Representative, 11 A.L.R.4th 638 (1982).

How do I update, change, or revoke my will?

How you can change your will depends on what type of will you have–general or holographic. If you have a general will (a will that has been typed and/or prepared for you by another person), you may make changes to it by writing a codicil. A codicil must conform to the same requirements needed for a will to be valid: the testator must have capacity, and the codicil must be in writing, witnessed, and signed. You cannot make interlineations or erasures of portions of your will after your will has been signed by the witnesses. If you make interlineations or erasures after the will has been signed by the witnesses, your will may become invalid. 

A general will may be revoked in a number of ways. First, an old will is automatically revoked when a new and valid will is written. Second, it may be revoked through written revocation stating that the will is no longer valid. To be effective, the revocation must be executed in the same way a will would be. Third, a will may be revoked by physically destroying the will with an intent to revoke it. “Intent to revoke” means that the testator consciously and purposefully destroys the will. If a new will is not made to replace it, however, the law will presume that the testator prefers the old will to intestacy. 

If you have a holographic will and wish to make changes to it, you cannot make interlineations or erasures to your will. Interlineations or erasures to your will may make it invalid. Instead, you must either re-write your entire will or obtain a valid general will. The new will automatically revokes the previous will. You can also completely revoke your prior will by physically destroying it with the intent to destroy it. However, if a new will is not made to replace it, your property will pass as described in the will you destroyed; the law will presume that you prefer that your property pass according to your old will over intestacy. 

For more information, see: W. Va. Code § 41-1-7 (2015); Kearns v. Roush, 106 W. Va. 663, 146 S.E. 729 (1929); Miller v. Todd, 191 W. Va. 546, 447 S.E.2d 9 (1994); In re Estate of Siler, 155 W. Va. 743, 187 S.E.2d 606 (1972); De Campi v. Logan, 95 W. Va. 84, 120 S.E. 915 (1923); Douglas v. Feay, 1 W. Va. 26 (1864); Turner v. Theiss, 129 W.Va. 23, 38 S.E.2d 369 (1946); Nelson v. Ratliffe, 137 W. Va. 27, 69 S.E.2d 217 (1952); Black’s Law Dictionary 177 (10th ed. 2014); 20 Michie’s Jurisprudence Wills §§ 24, 26 (2010).

What is an oral will?

An oral will, also known as a nuncupative will, is a will that is spoken by the testator to a witness. Oral wills are typically not valid in West Virginia; wills must almost always be written. There are, however, two types of oral wills that are recognized as valid. Soldiers in actual military service and mariners at sea may make out an oral will. Historically, these exceptions were allowed so that soldiers and seamen could dispose of their property on their deathbeds. 

For more information, see: W. Va. Code §§ 41-1-3 to -5 (2015); 20 Michie’s Jurisprudence Wills § 43 (2010). 

 

What is a holographic will?

A holographic will is a will that is entirely handwritten by the testator. For a holographic will to be valid in West Virginia, there are three requirements. First, the entire will must be in the handwriting of the testator. Any words not in the testator’s handwriting will be excluded from the will. Second, a holographic will must be signed by the testator with either a signature or a mark intended as a signature. The will does not have to be signed by any witnesses. The third requirement for a holographic will is that it must have testamentary intent. 

If a holographic will is never contested, the will is valid and all of the property will be distributed according to the will. However, it is important to be cautious in writing a holographic will. Because witnesses do not have to sign the will, there is no evidence to support the will if it is contested. In addition, holographic wills are often incomplete. Without the guidance of a lawyer, many people fail to effectively distribute their property and provide for all situations. In such a circumstance, your property may not be distributed as you wished.  

For more information, see: W. Va. Code § 41-1-3 (2015); Dantzic v. Dantzic, 222 W. Va. 535, 668 S.E. 2d 164 (2008); In re Estate of Teubert, 171 W. Va. 226, 298 S.E.2d 456 (1982); Matheny v. Matheny, 182 W. Va. 790, 392 S.E.2d 230 (1990); Black v. Maxwell, 131 W. Va. 247, 46 S.E.2d 804 (1948); In re Estate of Briggs, 148 W. Va. 294, 134 S.E.2d 737 (1964); Guaranty National Bank v. Morris, 176 W. Va. 228, 342 S.E.2d 194 (1986); Seifert v. Sanders, 178 W. Va. 214, 358 S.E.2d 775 (1987), commented on in 90 W. Va. L. Rev. 725 (1988); Clark v. Studenwalt, 187 W. Va. 368, 419 S.E.2d 308 (1992); Charleston National Bank v. Thru the Bible Radio Network, 203 W. Va. 345, 507 S.E.2d 708 (1998); 20 Michie’s Jurisprudence Wills § 42 (2010).

What is a will?

A will is a legal declaration as to how you wish for your estate, which consists of your land, personal property, and/or debt, to be transferred after you die. There are three main types of wills recognized in West Virginia: general wills, holographic wills, and oral wills. The statutory requirements that ensure the validity of each type of will are not the same, so it is important that you understand the type of will you wish to make and the laws you must follow to guarantee that your will is valid. 

For all wills, the testator must be 18 years old or older and of a sound mind at the time of creation. Wills that are typed and/or prepared for you, either using a form or the services of a lawyer, require all of the following five things to be valid: 

•the testator must be of sound mind 
•the testator must be 18 years old or older 
•the will must be in writing 
•the will must be signed by two witnesses 
•the will must be signed by the testator 

To be of sound mind to make a will, you must know your property, know how you are distributing your property, and know to whom you are leaving your property. Note that it takes less mental capacity to make a will than to make a deed or contract. Even if a testator lacks the capacity to perform many ordinary business transactions, as long as he/she meets the five listed criteria above, the will is valid. 

The testator’s signature does not necessarily have to be the testator’s full name; a mark that is meant to be a signature is sufficient. Also, if needed, another person may steady the testator’s hand. The witnesses and the testator must all see each other sign. The witnesses do not need to know anything about the contents of the will. 

Remember, the five requirements listed above only apply to wills that are typed and/or prepared for you by another person. The five requirements do not apply to holographic wills or oral wills.  

For more information, see: W. Va. Code §§ 41-1-1 to -10 (2015); Milhoan v. Koenig, 196 W. Va. 163, 469 S.E.2d 99 (1996) Runyon v. Mills, 86 W. Va. 388, 103 S.E. 112 (1920); McMechen v. McMechen, 17 W. Va. 683 (1881); Freeman v. Freeman, 71 W. Va. 303, 76 S.E. 657 (1912) (overruled on other grounds by Meadows v. Meadows, 196 W. Va. 56, 468 S.E.2d 309 (1996)); Barker v. Hinton, 62 W. Va. 639, 59 S.E. 614 (1907); 20 Michie’s Jurisprudence Wills §30 (2010); Rice v. Henderson, 140 W. Va. 284, 83 S.E.2d 762 (1954); Stewart v. Lyons, 54 W. Va. 665, 47 S.E. 442 (1903); Nicholas v. Keshner, 20 W. Va. 251 (1882); Woodville v. Woodville, 63 W. Va. 286, 60 S.E. 140 (1908) (overruled on other grounds); Payne v. Payne, 97 W. Va. 627, 125 S.E. 818 (1924); Kerr v. Lunsford, 31 W. Va. 659, 8 S.E. 493 (1888); 20 Michie’s Jurisprudence Wills §§ 9-11 (2010).

What kinds of things should I write into the “special directives and limitations” section of my living will or medical power of attorney?

If you have any particular wishes regarding the treatment of your body, you may detail them in this section of the living will or medical power of attorney. For example, you may strongly oppose the idea of giving or receiving organ donations because of your religious beliefs. Or you may not wish to receive any blood or blood products from another human being. 

Because modern medical treatment continues to expand, it is important to consider what kinds of treatment are acceptable to you. The following is a list of types of medical techniques or treatments that you may wish to consider when making out a living will or a medical power of attorney. Also, there may be other types of medical treatment not on this list that you wish to avoid. If you feel strongly about these or any other kind of medical treatment, you may wish to indicate your preferences regarding these treatments in the special directives and limitations sections of your living will or medical power of attorney. 

•organ donation or anatomical gift 
•cardiopulmonary resuscitation (CPR) 
•mechanical respiration (breathing machine) 
•feeding tube or other artificial/invasive form of nutrition (food) or hydration (water) 
•blood or blood products 
•surgery or invasive diagnostic techniques  
•kidney dialysis 
•antibiotics 

Information about things to consider in executing medical advance directives is available at http://www.wvendoflife.org and http://www.wvethics.org. (last visited June 1, 2015)

If I get really sick, I do not want to be resuscitated by CPR only to suffer longer or to artificially prolong my life. Is there any way to avoid CPR when I don’t want it?

Every person is presumed to consent to having CPR performed on him/her unless that person has executed a Do-Not-Resuscitate (DNR) order, a medical power of attorney, or a living will which indicates that he/she does not want CPR. Some people decide that they do not want CPR because in certain situations they feel that CPR may cause more pain and unnecessarily prolong an inevitable death. If you decide that you do not want CPR performed on you, you can include a request in your living will that you do not want to be resuscitated. This request must be followed by a DNR order from a treating physician. The DNR order states that in the event of cardiac arrest, CPR is not to be administered.  

For more information, see: Do Not Resuscitate Act, W. Va. Code §§ 16-30C-1 to -16 (2015); WVU Center for Health Ethics and Law, http://www.wvethics.org (last visited June 1, 2015); West Virginia Center for End-of-Life Care, http://www.wvendoflife.org (last visited June 1, 2015).

How can I avoid being kept on life support if I am in an accident and not expected to recover?

To avoid being kept on life support you can do one of two things: you can execute a living will, or you can include instructions in a medical power of attorney directing your representative to request that you not be kept on life support. 

For more information, see: West Virginia Health Care Decisions Act, W. Va. Code §§ 16-30-3 to -4, 16-30-18 to -19 (2015); http://www.wvendoflife.org (last visited June 1, 2015).

My parent is in a nursing home and he/she is not lucid. I would like to be able to pay his bills, take care of his house, and whatever else needs to be done. Is there any way I can do this?

Perhaps; it depends on whether the court would grant a request made by you to be appointed as your parent’s guardian and/or conservator. Poor judgment alone does not make someone a protected person. Any interested individual can petition the court to appoint a guardian or conservator for an alleged protected person. 

The law clearly states that no person can have a guardian or conservator appointed to manage her affairs without first being given notice, having an attorney to represent him or her, and having an opportunity for a hearing. The court will appoint an attorney to represent your parent. You may choose to have an attorney represent you, but your attorney will not be appointed nor paid for by the court. If after due process the court determines your parent needs a guardian and/or conservator, the court will then make a determination of who would be most appropriate to appoint in those roles. 

Any adult can be a guardian or conservator (or both), as long as the court determines that person to be suitable and the person is not employed by, or connected to, any public agency that gives help to the protected person. In theory, the protected person can choose who he wants to be his guardian or conservator, but the individual may be unable to do so because of his incapacity. The court may appoint co-guardians or co-conservators if it is in the best interest of the protected person.  

Conservators and guardians are required to fulfill specific duties under the law, including filing personal and financial reports with the court on a regular basis. A free training detailing these duties and answering various questions about guardianship and conservatorship is available on the West Virginia Supreme Court of Appeals website.  

In order for you to be your parent’s guardian, the court would first have to determine whether your parent would likely qualify as a protected person under the law. A protected person is a mentally impaired adult, eighteen years or older, who is unable to understand or respond to people, events, and environments to such an extent that the person cannot: 

•take care of himself/herself without help, or 
•manage property or finances or provide for his/her support (or the support of dependents) without help. 

If the court determines that your parent falls into one or both of these categories, he/she will be deemed a protected person. The court will not appoint a guardian or conservator merely because you or someone else disagrees with certain choices your parent has made about his/her finances or health care; there must be clear and convincing proof that your parent is unable to understand his/her surroundings and function without assistance.  

In order to file for guardianship, the first thing you must do is file a petition with the clerk of the circuit court. You must file in the county where your parent is living. There will be a filing fee which can be waived if you cannot afford to pay it. The required forms can be downloaded from the WV Supreme Court of Appeals website or can be provided for a copy fee by the county Circuit Clerk. You will have to give some or all of the following information: 

•your parent’s name, date of birth, place of residence or  

location, and post office address; 

•the names and addresses of the nearest known living relatives; 
•the name and address of the individual or health care facility that is responsible for your parent’s care and a detailed list of all the things they do for his/her benefit; 
•the name and address of anyone who has power of attorney for your parent, copies of these documents, and a detailed list of all the things they do for your parent’s benefit;  
•the name, address, and phone number of your parent’s attorney, if he/she has one; 
•whether your parent can attend a hearing, and if not, the reasons why he/she cannot attend; 
•the extent of the guardianship/conservatorship requested, the reasons why, and the specific areas of protection or assistance requested; 
•your name, address, age, occupation, and criminal history; or 
•the name, address, relationship, and status of the guardian selected by your parent if it is someone other than you. 

You will also have to include a report from a licensed physician or psychologist with the petition. The report must contain all of the following: 

•a description of your parent’s incapacity, including specific limitations; 
•an evaluation of your parent’s mental and physical condition; 
•a description of the health care services being provided for your parent, the reasons for these services, a recommendation of the most suitable living arrangement, and if appropriate, treatment and rehabilitation plans; 
•an opinion about whether an appointment of a guardian is necessary; 
•if your parent cannot attend a hearing, an opinion as to  

why attendance would be detrimental to his/her health; 

•if your parent can attend a hearing, an explanation of  

any medication(s) he/she will be on that will affect him/her at the hearing; 

•the signature of the physician who wrote the report; and 
•the date of the report. 

You will also have to send a financial statement with the petition. The statement must include your parent’s Social Security number and an approximate value of his/her property, assets, and income.  

After you file the petition, the circuit clerk will set a date for the hearing. The hearing will be held within 60 days of the time you file the petition. The clerk will give you a notice of hearing. You are required to notify your parent and everyone whose address is on the petition. You must send these people a copy of the notice of hearing and the petition by certified mail with a return receipt requested no later than 14 days before the hearing. The notice must also contain a brief statement regarding the purpose for the proceedings and must contain the following notice in large print:  

POSSIBLE CONSEQUENCES OF A COURT FINDING 

THAT YOU ARE INCAPACITATED 

At the hearing you may lose many of your rights. A guardian may be appointed to make personal decisions for you. A conservator may be appointed to make decisions concerning your property and finances. The appointment may affect control of how you spend your money, how your property is managed and controlled, who makes your medical decisions, where you live, whether you are allowed to vote and other important rights. 

The court will then appoint an attorney to participate in the proceeding. The attorney will represent your parent–not you. At the hearing, the court will decide whether your parent needs a guardian and, if so, whether you will be appointed as his/her guardian. 

If you are appointed guardian, then you must sign an oath promising to faithfully perform the duties of guardianship. You must also complete educational training to learn more about your duties. The education program is developed by the secretary of health and human resources and may consist of written materials and/or audiotapes or videotapes. A tutorial for guardians can be found at http://www.courtswv.gov/public-resources/guardian-conservator/index.html for individuals wanting to view the process. Finally, the court will decide whether it is necessary that you post a bond. You must also send the order of appointment to your parent within 14 days along with a brief statement in large print of your parent’s rights to seek an appeal for modification or termination.  

Anyone who wants to terminate the guardianship or conservatorship may petition the court. Both guardianship and conservatorship automatically terminate when your parent dies. 

For more information, see: W. Va. Code § 39B-1-108 (2015); West Virginia Guardianship and Conservatorship Act, W. Va. Code §§ 44A-1-1 to -14 (2015); West Virginia Guardianship and Conservatorship Act, W. Va. Code §§ 44A-2-1 to -13 (2015); State ex rel. Shamblin v. Collier, 191 W.Va. 349, 445 S.E.2d 736 (1994).

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).

I want my child or friend to take care of my affairs when I am no longer able to do so. What should I do to make sure he/she will have the power to act when that time comes?

You have many options available and each option varies by the amount of control your are willing to give to the person you wish to have the power to make certain decisions for you. Please see the table below which describes many of the options available to you as you prepare for incapacity.

Legal Device Party Who Chooses Your Decision-maker Type of Decision the Legal Device Covers Timeframe
You The Court Your Doctor Financial or Property Personal or Healthcare
(Financial) Power of Attorney x x Effective when executed or otherwise state in the device, power ends when revoked or you die
Medical Power of Attorney x x Effective upon your incapacity, may be revoked if you regain capacity
Guardian x x The court determines when this device is effective
Conservator x x The court determines when this device is effective
Healthcare Surrogate x x Effective when appointed, becomes ineffective when you regain capacity
Living Will n/a n/a n/a x Effective upon your incapacity, may be changed while you are competent

For more information, see: West Virginia Health Care Decisions Act, W. Va. Code §§ 16-30-1 to -24 (2014); Uniform Power of Attorney Act 39B-1-101, et seq. (2014); Mental Capacity Standards in West Virginia: A Handbook on Legal Decisionmaking Authority (June 2002). A copy of this publication can be obtained by contacting West Virginia Senior Legal Aid, Inc. at 1 (800) 229-5068.

What are guardians and conservators?

A guardian is a person appointed by the court to make decisions for you regarding your health and personal welfare if you become unable to make these decisions for yourself. The duties of guardianship include making decisions about the individual’s care, support, health, education, and therapy. The guardian must keep in contact with the protected person and visit him/her at least once every six months. The guardian also must encourage the individual’s participation in decision-making. The responsibilities may be both financial and personal. However, the appointment may only be for a limited guardianship, which authorizes responsibility for only those matters specifically mentioned by the court.  

A conservator is also appointed by the court. A conservator is appointed to handle your estate and financial affairs when you become unable to do so. The conservator uses the income of the estate for the support, care, and health of the individual and his/her dependents. The conservator is also responsible for investments and managing the estate. Neither guardians nor conservators may profit directly or indirectly from the estate or income of the protected person. 

For more information, see: Mental Capacity Standards in West Virginia: A Handbook on Legal Decisionmaking Authority (June 2002). A copy of this publication can be obtained by contacting West Virginia Senior Legal Aid, Inc. at 1 (800) 229-5068 or going to http://seniorlegalaid.net/index.php?option=com_docman&itemid=45 (last visited May 29, 2015).

How do I revoke a Do-Not-Resuscitate (DNR) Order?

You can revoke a DNR order at any time. To do this, you must either write of your intention or orally communicate your intention to your physician or other health care professional. If you are at home, you may revoke the DNR by destroying it, but you must still notify your physician of your intention to revoke the DNR. A health care surrogate may also revoke a DNR if he feels that doing so would be in the person’s best interests. 

For more information, see: W. Va. Code §§ 16-30C-1 to -16 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

How do I obtain a Do-Not-Resuscitate (DNR) Order?

If you decide that you do not want to receive CPR if you experience cardiac arrest, you should obtain a DNR order. You can also include your wish not to be revived in your living will and/or you medical power of attorney. To receive a DNR order, you must request that you physician provide the order in writing. A representative or health care surrogate may also request a DNR order on your behalf if you are incapacitated. If you do not reside in a health care facility, your order must be reduced to a card that can be carried with you. In addition, you must wear a DNR identification bracelet or necklace. 

Examples of DNR orders are available in the West Virginia Code § 16-30C-6(f) (2015) and at http://www.wvethics.org (last visited May 29, 2015). 

For more information, see: W. Va. Code §§ 16-30C-1 to -16 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

What is a Do-Not-Resuscitate (DNR) Order?

A Do-Not-Resuscitate (DNR) order is a document issued by your physician which states that you do not wish to receive life-saving measures such as cardiopulmonary resuscitation (CPR). When a DNR order is properly executed, a health care provider may not perform CPR on you if he/she knows about the order. If the health care provider feels as if he/she cannot abide by the order if you experience cardiac arrest, he/she must transfer you to a facility that will. 

Executing a DNR is in no way considered suicide, and withholding CPR from a person who has a DNR order is in no way considered murder. A DNR order will not invalidate a life insurance policy. 

For more information, see: W. Va. Code §§ 16-30C-1 to -16 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

What is a health care surrogate?

A health care surrogate is appointed by your doctor or by an advanced nurse practitioner if you become unable to make your own health care decisions but have not previously executed a document such as a medical power of attorney or a living will, or a court has not appointed a guardian for you. The surrogate can make any necessary health care decisions for you if you are incapacitated and is given the same access to your medical records as you would have. The surrogate can make decisions related to your placement in a nursing home, applying for Medicaid, and withholding or withdrawal of life-prolonging intervention. 

Surrogates are chosen according to a prioritized list. Spouses are considered first, then adult children, parents, adult siblings, adult grandchildren, and close friends. Using this list and other criteria, the physician selects the best-qualified person. These criteria include the person’s demonstrated concern, contact with you, and proximity. Please note, however, that if you are in a non-traditional relationship, your partner may not be recognized as the surrogate. To avoid the potential of your partner being left out of the decision making process, it is best that you designate that person as your Medical Power of Attorney. 

The surrogate makes decisions without a court order or judicial involvement. The surrogate is legally required to make health care decisions in accordance with your wishes including your religious and moral beliefs. If your surrogate does not know what your wishes are and cannot find out using reasonable efforts, then he/she must make decisions he/she thinks are in your best interests. The surrogate can make decisions about autopsy, organ donation, and tissue donation after your death. If you have a living will or a medical power of attorney stating your wishes regarding autopsy or the desire to make an anatomical gift, or have done so using a donor card or driver’s license, the surrogate must follow your wishes. However, without a written directive, the surrogate must make these important decisions on your behalf for you. 

For more information, see: W. Va. Code §§ 16-30-6 to -9 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

How do I revoke a financial power of attorney?

You can revoke a financial power of attorney at any time while you are competent. The revocation must be in writing, and a copy of the writings sent to the agent and to anyone the attorney-in-fact has dealt with or is likely to deal with on your behalf. It is critical to give notice to both the agent and third parties who your agent might deal with on your behalf, such as banks, insurance agents, financial advisors, etc. because without that notice they may legally continue to respect the power of attorney. Merely signing a revocation will not end the authority as a practical matter for anyone who has not received notice of the revocation.  

For more information, see Uniform Power of Attorney Act, W. Va. Code §§ 39B-1-101, et seq. (2015).

How do I appoint someone to make financial decisions for me as my agent under a power of attorney?

The Uniform Power of Attorney Act passed in WV in 2012 sets forth how to execute a valid financial power of attorney. The new law includes a statutory form. By executing a financial power of attorney you are giving your agent authority to access your money and property starting immediately. This gives the agent full access to buy, sell, trade, and spend money and property depending on the specific powers you give through the statutory form. Consulting with an attorney about whether you need a power of attorney and if so what it should include is the safest way to protect your interests in considering this kind of planning. Unlike a will or a medical power of attorney, executing this kind of document without careful consideration can make your money, your home, and your belongings vulnerable to exploitation. 

To be a valid power of attorney, it must be signed by the principal (the person who is giving the authority to the agent) and the signature must be notarized. Witnesses are not required for financial powers of attorney, unlike for medical powers, living wills, and wills, where two witnesses are required. 

West Virginia law states specifically how a medical power of attorney must be written to take effect. 

For more information, see Uniform Power of Attorney Act, W. Va. Code §§ 39B-1-101, et seq. (2015) .

What is a financial power of attorney?

A financial power of attorney (POA) is a device with which you can appoint a trusted adult to manage your affairs. In June 2012 West Virginia enacted the Uniform Power of Attorney Act which dramatically reformed the law in our state regarding financial powers of attorney. This question and answer is based on that law.  

In a power of attorney you are authorizing the person you appoint, your agent, to manage aspects of your finances typically starting at the moment you execute the POA. Many seniors believe that the agent’s authority under a power of attorney doesn’t begin until you are no longer capable of managing your own affairs, but this is a myth. The default position of a power of attorney is that agent authority begins immediately. 

You may choose to add language to your power of attorney document that would delay when the agent’s authority begins, this is called a springing power of attorney, because the authority springs forth when the circumstances or conditions are met as set forth in the document. Springing powers are rarely an effective or safe choice, this is why the new law makes immediate authority the default position. In older powers of attorney the authority commonly sprung forth when the principal became incapacitated. Since incapacity is not an on or off switch, but is rather a variable and complex circumstance, it can be nearly impossible to determine with certainty when a principal has become incapacitated to manage his or her financial affairs. People with dementia may have years of “good days and bad days,” and even have variable lucidity at different times of the day. Some medications and infections can cause temporary periods of confusion and memory problems. Different people and professionals can have conflicting assessments of a person’s incapacity. Capacity can come and go, making it very complicated if your document only gives authority when you are currently incapacitated. 

If the reason you do not want your agent to have authority now is because you do not trust him or her to have access to your money and property right now, then you are certainly choosing the wrong agent. Once you lose the capacity to oversee your agent’s actions, that person will not suddenly become more trustworthy. 

There are many considerations you should take into account when considering whether having a POA is right for you. This is not a kind of planning document that every person should have, necessarily. These documents give substantial authority over your property and finances to your agent. This power is easily exploited, and sadly this kind of abuse perpetrated by family, close friends, and trusted people is all too common. If someone is suggesting that you give him or her power of attorney you should never execute this document merely because you don’t want to hurt that person’s feelings, or because you are afraid he or she will not continue to help you if you don’t.  

For more information, see: Uniform Power of Attorney Act, W. Va. Code §§ 39B-1-101-110. (2015).

How do I revoke a medical power of attorney?

West Virginia law provides four ways in which a medical power of attorney can be revoked. First, the medical power of attorney document can be destroyed by the principal or at the principal’s direction. If the principal tells someone else to destroy the document, that person must destroy it in the principal’s presence. 

Second, written notification to the physician will revoke a medical power of attorney. However, the medical power of attorney is not revoked until the physician receives the notice of revocation. 

Third, a verbal expression of termination in front of a witness who is at least 18 years old revokes the power of attorney. The witness must put the verbal expression into writing and then sign and date it. Then the writing must be given to the physician. Again, the medical power of attorney is not revoked until the physician receives the notice. 

Fourth, when a person is divorced, a medical power of attorney that designates the former spouse as representative is revoked automatically. If you and your spouse obtain a divorce, you will need to appoint a new power of attorney. If you still want your former spouse to serve as your representative, he or she may do so, provided that you reappoint them with a new medical power of attorney. 

See Appendix C of this manual for forms for Revocation of Medical Power of Attorney and Revocation of Living Will. 

For more information, see: West Virginia Health Care Decisions Act,W. Va. Code §16-30-18 (2015); W. Va. Code §§ 39B-1-110 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

How do I appoint someone to make health care decisions for me as my representative under a medical power of attorney?

A medical power of attorney must be executed in the manner laid out in the West Virginia statutory code. The law requires that, to be effective, the medical power of attorney be: 

•signed by the principal in the presence of two witnesses, and 
•signed by the two witnesses and a notary public. 

The law places limits on who may act as a witness for your medical power of attorney. A witness cannot be: 

•a person 17 years old or younger 

•a person who signed the medical power of attorney on behalf of and at the direction of the principal 

•related by blood or marriage to the principal 

•entitled to a share of the principal’s estate 
•legally responsible for the principal’s medical expenses 
•the attending physician, or 
•the representative appointed in the medical power of attorney. 

Finally, the law does make some people ineligible to act as your representative. The following are people who may not act as your representative: 

•your treating health care provider, 
•an employee of your treating health care provider unless that person is related to you, 
•the operator of the health care center treating you, or 
•an employee of the health care center that is treating you unless that person is related to you. 

West Virginia law states specifically how a medical power of attorney must be written to take effect.  

Medical powers of attorney are especially important for people in non-traditional relationships. Oftentimes, a person’s partner can be shut out of the decision making process unless he/she has the explicit power given to him/her by her partner in the form of a medical power of attorney. 

Instructions on how to obtain sample living will forms are available in Appendix C. 

For more information, see: W. Va. Code §§ 16-30-1 to -25 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

What is a medical power of attorney?

A medical power of attorney is a device that allows an adult you trust to act as your representative to make health care decisions for you if you become incapacitated. You create a medical power of attorney before you become incapacitated and it only takes effect after you become incapacitated. Your representative does not have any authority until a medical professional determines you are medically incapacitated. Furthermore, the powers given to your representative are only those related to your health care; your representative has no control over your property or finances if you become incapacitated. (See also the question on how to appoint someone to make health care decisions on page 51.)  

A medical power of attorney is likely valuable for any adult to have. That way, if something unexpected happens to you, someone you trust can have the authority to make your health care decisions for you. If you don’t execute a medical power of attorney and a medical decision needs to be made for you at a time that you are incapable, your physician may appoint a healthcare surrogate to make decisions for you (see also healthcare surrogate question on page 56).  

For more information, see: W. Va. Code §§ 16-30-1 to -24 (2015); http://www.wvendoflife.org (last visited May 29, 2015).

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) .