Power of attorney, health care directive and guardianship in West Virginia

Financial power of attorney in West Virginia

Law and official form

Law

Uniform Power of Attorney Act

Uniform Power of Attorney Act

Yes (effective 2012 (HB 4390, 2012 Regular Session))

Official form

State of West Virginia Statutory Form Power of Attorney (W. Va. Code 39B-3-101)Published by West Virginia Legislature

You do not have to use it.

You do not have to use this form, but banks' duty to accept a power of attorney applies only to an acknowledged statutory form power of attorney. The form ends with a signature and notary acknowledgment block.

Law: W. Va. Code §§ 39B-1-101 et seq; W. Va. Code §§ 39B-3-101, 39B-1-120

Signing rules

How to sign

Sign the power of attorney and acknowledge it before a notary public (or another official authorized to take acknowledgments).

Who signs

Signed by you, or in your conscious presence by another person you direct to sign your name.

Notary

Required

Witnesses

None required

Agent's acknowledgment

No signed acceptance is required. An agent accepts by acting as agent or by other conduct showing acceptance.

Law: W. Va. Code 39B-1-113

Electronic signing

A photocopy or electronically transmitted copy of a power of attorney has the same effect as the original, unless another statute says otherwise.

Law: W. Va. Code 39B-1-106(d)

Law: W. Va. Code § 39B-1-105

Durable and springing

Is it durable?

A power of attorney is durable unless it expressly says it ends when you become incapacitated.

Law: W. Va. Code 39B-1-104

Durable unless it says otherwise?

Yes: it continues if you lose capacity unless it says otherwise.

Starting later (springing)

A power of attorney takes effect when signed unless it says it starts at a future date or event. You can name one or more people to decide in writing that the event has happened. If it starts on your incapacity and no one you named can decide, a physician or licensed psychologist can determine it in writing (or an attorney, judge or government official if you are detained or outside the U.S. and unable to return).

Law: W. Va. Code 39B-1-109

What an agent can and cannot do

Needs express permission

• Create, amend, revoke or end a living trust
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate authority under the power of attorney
• Waive your right to be a beneficiary of a joint and survivor annuity, including a retirement survivor benefit
• Exercise fiduciary powers you have authority to delegate
• Disclaim property, including a power of appointment
• Exercise authority over the content of your electronic communications

No power of attorney can

Unless the power of attorney says otherwise, an agent cannot use it to give themselves (or someone they must support) an interest in your property by gift, survivorship, beneficiary designation, disclaimer or otherwise. In West Virginia this limit applies to every agent, including relatives. The Act does not cover health care decisions.

Law: W. Va. Code 39B-2-101(b); W. Va. Code 39B-1-103

Law: W. Va. Code § 39B-2-101(a)

Agent duties, pay and court review

Agent duties

• Act in line with your reasonable expectations as far as the agent knows them, and otherwise in your best interest
• Act in good faith and only within the authority you gave
• Act loyally for your benefit and avoid conflicts of interest
• Act with the care, competence and diligence agents ordinarily use
• Keep a record of all receipts, payments and transactions
• Cooperate with your health care decision-maker
• Try to preserve your estate plan, if known and in your best interest

Agent pay

Unless the power of attorney says otherwise, an agent is entitled to repayment of reasonable expenses and reasonable compensation, but an agent who is your ancestor, spouse or descendant is not entitled to compensation unless the power of attorney specifically provides for it.

Law: W. Va. Code 39B-1-112

Asking a court to review an agent

You, your agent, a guardian or conservator, your health care decision-maker, your spouse, parent or descendant, a presumptive heir, a beneficiary, a protective agency, your caregiver or another interested person, and a person asked to accept the power can ask a court to interpret it or review the agent's conduct. The court must dismiss the petition at your request unless it finds you lack capacity to revoke.

Law: W. Va. Code 39B-1-116

Law: W. Va. Code § 39B-1-114

When it ends and how to revoke it

It ends when

• You die
• You become incapacitated, if the power of attorney is not durable
• You revoke the power of attorney
• The power of attorney says it ends
• Its purpose is accomplished
• You revoke the agent's authority, or the agent dies, becomes incapacitated or resigns, and no other agent is named
• For a spouse-agent, when an action for divorce, annulment or legal separation is filed, unless the document says otherwise
• A court appoints a conservator or other fiduciary for your property, unless the court orders otherwise

Divorce ends a spouse's authority

Yes · Divorce rules in West Virginia (Divorce Law Map)

How to revoke

You can revoke your power of attorney or an agent's authority. West Virginia's Uniform Power of Attorney Act does not set a required form or method for revoking. Signing a new power of attorney does not revoke an old one unless the new one says so.

Law: W. Va. Code 39B-1-110

Telling others

Revocation does not affect an agent or other person who acts in good faith without actual knowledge of it; their acts still bind you. For real property, see the notice-of-termination filing rule.

Law: W. Va. Code 39B-1-110(d); W. Va. Code 39B-1-119(c)

If it was recorded

For real estate, the good-faith protection for people who accept a power of attorney does not apply to a conveyance of real property if you have filed a notice of termination of the power of attorney with the clerk of the county commission in the county where the property is located.

Law: W. Va. Code 39B-1-119(c)

Law: W. Va. Code §§ 39B-1-108(b), 39B-1-110; W. Va. Code §§ 39B-1-110, 39B-1-119(c)

Banks, other states and real estate

Banks and other businesses

A person may rely in good faith on an acknowledged power of attorney and may ask for an agent's certification, an English translation or a lawyer's opinion. For an acknowledged STATUTORY FORM power of attorney (or a military power of attorney), the person must accept it or ask for those items within 7 business days, and then accept within 5 business days after receiving them; it may not demand a different form. Exceptions include not otherwise dealing with you, a conflict with federal law, a good-faith belief the power is invalid, and a report of suspected abuse to adult protective services. A court can order acceptance and may award attorney's fees and costs.

Law: W. Va. Code 39B-1-119; W. Va. Code 39B-1-120

Signed in another state

A power of attorney signed outside West Virginia is valid if its signing met the law of the state that governs its meaning (the state named in it, or where it was signed), or the federal military power of attorney rules.

Law: W. Va. Code 39B-1-106(c), 39B-1-107

Real estate

A notice of termination of a power of attorney can be filed with the clerk of the county commission where real property is located; after that, good-faith reliance does not protect a conveyance of that property.

Law: W. Va. Code 39B-1-119(c)

Health care directive in West Virginia

The document and its form

Document

Medical power of attorney, living will, or combined medical power of attorney and living will (West Virginia Health Care Decisions Act)

Official form

State of West Virginia Living Will; Medical Power of Attorney; Combined Medical Power of Attorney and Living Will (statutory forms in W. Va. Code 16-30-4(g)-(i))Published by West Virginia Legislature (official West Virginia Code; the three optional forms are printed in section 16-30-4)Version: Forms as amended by SB 470 (2022); the section applies to documents signed, amended or adjusted on or after January 1, 2023, and earlier documents remain in effect

You do not have to use it.

Living will

Living will

The living will is a separate document.

A living will states that life-prolonging intervention be withheld or withdrawn if a physician who examined you certifies a terminal condition and you cannot communicate. It has the same signing rule: two qualified witnesses plus a notary. It can stand alone or be combined with a medical power of attorney on the combined form.

Living will

Law: W. Va. Code § 16-30-4; W. Va. Code §§ 16-30-3, 16-30-4(g), (i)

Signing rules

How to sign

Sign and date the living will, medical power of attorney or combined form in front of two qualified adult witnesses, who also sign. The witnesses' signatures and attestations must be acknowledged before a notary public (the statutory forms' notary certificate covers you and both witnesses). Both the witnesses and the notary are required.

Who signs

In writing and dated, signed by you (or by another person in your presence at your express direction if you are physically unable).

Notary

Required

Witnesses

2

Who cannot witness

Two or more witnesses at least 18 years old must see you sign and must sign and attest; their signatures and attestations must be acknowledged before a notary public. A witness cannot be: the person who signed for you; related to you by blood or marriage; entitled to part of your estate under your will (unless unaware of it); directly financially responsible for your medical care; your attending physician; or your medical power of attorney representative or successor representative.

Nursing facilities and special settings

When you are admitted to a health care facility you must be told about these forms and offered help completing them, but admission cannot depend on having one.

Law: W. Va. Code 16-30-4(e)

Law: W. Va. Code § 16-30-4(a), (b)

Who can be your agent and what the agent can do

Who cannot be your agent

These people cannot be your medical power of attorney representative or successor: a treating health care provider; an employee of a treating provider who is not related to you; an operator of a health care facility serving you; or an employee of such an operator who is not related to you.

Law: W. Va. Code 16-30-4(c)

When the agent starts

The statutory medical power of attorney form says it becomes effective only upon your incapacity to give, withhold or withdraw informed consent. Incapacity is determined and recorded by the attending physician, a physician, a qualified psychologist, a physician assistant or an advanced practice registered nurse who personally examined you; age, disability or a mental illness or intellectual disability diagnosis alone does not create a presumption of incapacity.

Law: W. Va. Code 16-30-4(h), 16-30-7

Decisions an agent cannot make

If your own expressed directives conflict with the representative's or surrogate's decisions or a POST form, your directives are followed.

Law: W. Va. Code 16-30-5(b)

Revoking and conflicting documents

Revoking your agent

A living will or medical power of attorney can be revoked only by you or at your express direction: (1) by destroying it (or having it destroyed in your presence at your direction); (2) by a signed and dated written revocation, effective when delivered to your attending physician; or (3) by saying you revoke it in front of an adult witness who signs and dates a writing confirming it, effective when communicated to your attending physician. A final divorce decree automatically revokes the designation of a former spouse as medical power of attorney representative or successor representative.

Law: W. Va. Code 16-30-18(a); W. Va. Code 16-30-18(c)

Revoking your instructions

The same methods apply to a living will.

Law: W. Va. Code 16-30-18(a)

Telling others

It is your (or your representative's) responsibility to notify your attending physician and other providers of the document or its revocation; providers must put it in your medical record. No one is liable for failing to act on a revocation they did not actually know about.

Law: W. Va. Code 16-30-4(d); W. Va. Code 16-30-18(b)

Divorce ends a spouse's authority

Yes · Divorce rules in West Virginia (Divorce Law Map)

Conflicting documents

If two advance directives conflict, the most recent controls only to the extent needed to resolve the inconsistency.

Law: W. Va. Code 16-30-5(c)

Law: W. Va. Code §§ 16-30-4(d), 16-30-18

If you have no directive

Who decides without a directive

If you are incapacitated and have no available medical power of attorney representative or court-appointed guardian, your attending physician or advanced nurse practitioner selects a health care surrogate in writing, in this order of priority. Within a level, the person best qualified is chosen, and the physician may choose a lower-ranked person who is best qualified if the reasons are documented. Your treating providers and health care facility operators and their unrelated employees cannot be your surrogate. A ranked person can challenge the selection in circuit court. For people with psychiatric mental illness, intellectual disability or addiction, a second opinion on incapacity is required before a surrogate is selected.

1. Your spouse
2. Your adult children
3. Your parents
4. Your adult siblings
5. Your adult grandchildren
6. Your close friends
7. Any other person or entity designated in Department of Health rules (such as public agencies or public guardians)

Law: W. Va. Code §§ 16-30-8, 16-30-24

Other states, registry and medical orders

Signed in another state

A living will, medical power of attorney, mental health advance directive, POST form, DNR card or similar document made in another state is valid if it complies with West Virginia law or the law of the state where it was made.

Law: W. Va. Code 16-30-21

POLST (medical orders)

Portable Orders for Scope of Treatment (POST) form (bright pink)

Law: W. Va. Code § 16-30-25

Guardianship and conservatorship in West Virginia

What guardianship or conservatorship is

What it is called

Guardian (personal affairs) and conservator (estate and financial affairs) of a protected person; limited guardian or conservator; temporary guardian or conservator

When a court may appoint one

A 'protected person' is an adult whom a court finds, because of mental impairment, unable to receive and evaluate information effectively or respond to people, events and environments to the extent they cannot meet essential requirements for health, care, safety, habilitation or therapeutic needs without a guardian, or cannot manage property or finances without a conservator. The court must consider less restrictive alternatives, including advance directives, and any appointment must be the least restrictive possible.

Law: W. Va. Code 44A-1-4(13); W. Va. Code 44A-2-10

Kinds

• Guardian
• Limited guardian
• Conservator
• Limited conservator
• Temporary guardian or conservator (expires within six months unless extended once for up to six months)

Law: W. Va. Code §§ 44A-1-4, 44A-2-1, 44A-2-2, 44A-2-8, 44A-2-10, 44A-2-11, 44A-2-14

Who can ask, which court and your own choice

Who may ask

The person alleged to need protection, a person responsible for their care or custody, the facility caring for them, the person they nominated, a de facto guardian or conservator, or any other interested person, including the Department of Human Services.

Law: W. Va. Code 44A-2-2(a)

Court

Circuit court in the county where the person lives (or where the health care or correctional facility they were admitted to is located).

Choosing your own

Anyone with capacity to form a preference can nominate a guardian or conservator in writing, orally to the court or by other evidence. Naming a medical power of attorney representative, living will or surrogate is evidence of a guardian nomination, and naming an agent in a durable power of attorney is evidence of a conservator nomination. The court must appoint the nominee if eligible and in the person's best interests.

Law: W. Va. Code 44A-2-8, 39B-1-108(a)

Effect on a power of attorney

If a court appoints a conservator or other fiduciary for your property, your agent is accountable to them, and unless the court orders otherwise the power of attorney and the agent's authority END on the appointment.

Law: W. Va. Code 39B-1-108(b)

Cost, fee waiver and forms

Filing fee

$110 filing fee for a petition, paid to the circuit clerk.

Law: W. Va. Code 44A-2-1(c)

Fee waiver

A person who cannot afford the fees and costs is not required to pay them under the general fee-waiver statutes; the West Virginia Judiciary publishes fee waiver forms.

Law: W. Va. Code 44A-2-1(d)

Forms

• GC01 Petition for the Appointment of a Guardian / Conservator
• GC04 Evaluation Report of Licensed Physician / Psychologist
• GC02 Motion for Leave to File Petition Without Evaluation Report
• GC06 Statement of Financial Resources (Summary Form)
• GC14 Oath of Appointment
• GC31 Periodic Report of Guardian
• GC23 Petition for Termination, Revocation or Modification of Guardianship / Conservatorship

Steps

Steps

Other options and where to report abuse

Less restrictive options

• Advance directives (medical power of attorney, living will) and durable power of attorney: The court must consider less restrictive alternatives, including advance directives, before appointing a guardian or conservator.
• Health care surrogate: A doctor-selected surrogate can make health care decisions without a court order.
• Limited guardianship: A guardian only for specific areas, for example major medical decisions or where to live.

Report abuse or exploitation

West Virginia Department of Human Services, Bureau for Social Services - Centralized Intake for Abuse and Neglect (Adult Protective Services)

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Good to know in West Virginia

• A West Virginia medical power of attorney or living will needs BOTH two qualified witnesses AND a notary.

  Law: W. Va. Code 16-30-4(a)

• A financial power of attorney ENDS when a court appoints a conservator, unless the court orders otherwise.

  Law: W. Va. Code 39B-1-108(b)

• A relative-agent (ancestor, spouse or descendant) is not paid unless the power of attorney specifically provides for pay.

  Law: W. Va. Code 39B-1-112

• Banks' statutory duty to accept applies only to the acknowledged statutory form power of attorney.

  Law: W. Va. Code 39B-1-120

Changes in 2024–2026

2024 Regular Session HB 4274 (effective January 22, 2024) renamed the Department of Health and Human Resources in 16-30-8, 16-30-25, 44A-1-8 and 44A-2-2. No other 2024-2026 change to the power of attorney, health care decisions or guardianship rules described here was enacted. SB 470 (2022) rewrote the statutory health care forms and execution rules, effective for documents signed on or after January 1, 2023.

Questions about powers of attorney in West Virginia