This document discusses legal decision-making tools in West Virginia including powers of attorney, medical powers of attorney, living wills, healthcare surrogates, and guardianship/conservatorship. It defines these terms and outlines the differences between them, noting that powers of attorney are chosen by the individual while guardianship/conservatorship involves a court determination of incompetency. Throughout it emphasizes that these tools should be tailored to the individual's specific wishes and circumstances.

1. Capacity & Legal Decisionmaking
in West Virginia
Cathy McConnell, Esq.
Executive Director
West Virginia
Senior WV Senior Legal Aid
Legal Aid
1-800-229-5068
www.seniorlegalaid.org
seniorlegalaid@yahoo.com
235 High Street #519, Morgantown WV 26505

2. Wild Wonderful
West Virginia!

3. owers of Atty
What is a power of attorney?
• An instrument by which you choose a person to act as your
agent. An agent has authority to act on your behalf in the
ways you describe in the power of attorney instrument.
Slide # 3

4. Powers of Atty
Vocabulary
• Power of attorney (POA): the paper you sign choosing an agent and
outlining his authority
• Agent (A): the person the principal authorizes to act on her behalf
in a POA
• Principal (P): the person who picks the agent, and on whose behalf
the agent acts in a POA
• Execution: the act of making a POA or other document valid (ie.
signing, notarizing)
Slide # 4

5. Powers of Atty
Types of Powers of Attorney
• Terms denoting what kinds of decision-making
– Medical
– Financial
– General
• Terms denoting when authority begins
– Durable: endures through incapacity
– Springing: springs forth upon certain event or circumstance (ie.
Incapacity)
Slide # 5

6. Powers of Atty
Semantics
You cannot BE someone’s POA, or have POA OVER
someone, but
You can HAVE POA FOR someone.
Slide # 6

7. Powers of Atty
Common duty of Agents under
various types of POA
• Agents have a fiduciary duty to their P’s
• Fiduciary is the highest standard of duty imposed by law
• Based on trust, confidence, integrity, fidelity
• Fiduciary duty requires A to subordinate his personal interests to
those of P
Slide # 7

8. DPOA
Financial Powers of Attorney
WV Code §39-4-1
Slide # 8

9. DPOA
What are financial POA’s for?
• can avoid need for guardianship/conservatorship court
proceeding
• can help effect P’s choice of guardian/conservator
• can stretch P’s independent living longer by enabling a little
help
Slide # 9

10. DPOA
BUT. . .it’s a double-edged sword
•high potential for abuse
•favorite tool of financial exploiters and elderabusers
•roles of A and P often misunderstood
•there are no DPOA police B not self-enforcing
Slide #

11. DPOA
Durable v. Springing, what’s better?
•usually durable is best
•effective now (A & P share authority till incapacity)
•capacity can be fluid, problem of proof for springing
•if you don’t trust A now, why later?
Slide #

12. DPOA
Roles of Agent and Principal
•when P has capacity, A is helper, not boss
•P gets to choose to have POA and who will be A
•A is fiduciary
•DPOA gives authority but no property/financial
ownership
Slide #

13. DPOA
Roles of 3 rd parties
•no legal requirement to respect A’s authority
•nor legal requirement to investigate
Slide #

14. DPOA
What authority does A have?
•only what is enumerated in instrument (construed
narrowly)
•each should be tailored especially for P
•NEVER use a fill-in-the-blank form
Slide #

15. POA
Difficult issues
• the Crystal Ball Conundrum
• broad enough to be useful, but narrow enough to be careful
• to gift or not to gift?
• the dreaded daughter-in-law
Slide #

16. POA
Revocation - when does
A’s authority end?
•automatically after P dies and A has notice of death
•P with capacity can revoke for any reason (or none)
•order of appointment of other person as G/C may
revoke explicitly
Slide #

17. MPOA
Medical Power of Attorney
WV Code §16-30-1, et seq.
You document your choice of agent to make medical decisions or
you if your doctor has determined you are not capable of
making your own medical decisions.
Slide #

18. MPOA
How MPOA is different from DPOA
• MPOA=medical only, DPOA=money/property only
• Fill-in-the-blank form, anyone can distribute
• Only effective when doc determines you incapable of med
decisionmaking
• Medical professionals required to both assess and respect
• Specific duties and standards for decisionmakers
Slide #

19. POA
How MPOA is similar to DPOA
• It’s your choice, not doctor or court
• It’s only about a specific area of decisionmaking
• You can tailor it to your specific circ’s and wishes
• Doesn’t take away your autonomy if you are still capable,
you can revoke or change if you are still capable
Slide #

20. LW
Living Will
WV Code §16-30-1, et seq.
You document your choices regarding stopping or preventing
being kept alive artificially if your doctor determines you are
in a terminal condition or a persistent vegetative state.
Instructs doctors how you want to die naturally.
Slide #

21. LW
How LW is different from MPOA
• In MPOA you choose an agent decisionmaker, in LW you give
direct prior instructions to your doctor
• LW is only about end-of-life, MPOA is all medical decisions
Slide #

22. LW
How LW is similar to MPOA
• It’s your choice, not doctor or court
• Medical only, does not give authority for financial
• Can handwrite in your specific wishes before executing
• Doesn’t take away autonomy if you are still capable
Slide #

23. HCS
Healthcare Surrogate
WV Code §16-30-1, et seq.
Appointment made by your doctor of an agent to make medical
decisions for you because you are not capable of making them
yourself
Slide #

24. HCS
How is HCS different from MPOA
• Must be appointed by your doctor, not your choice
• Choice made from a specific ranked order of relationships
(WV Code §16-30-8)
• Decisionmaker may be someone who you don’t even know
Slide #

25. CS
How HCS is similar to MPOA
• Only about medical decisions
• Same boundaries of authority (unless you specify less in
MPOA) (WV Code §16-30-6)
• Decisionmaker only has authority if your doctor deems you
incapable of making your own medical decisions
Slide #

26. ardianship/Conservatorship
Guardianship
& Conservatorship
WV Code §44A-1-1, et seq.
Slide #

27. ardianship/Conservatorship
What is Guardianship/Conservatorship?
•Court proceeding deeming a person to be
incompetent to handle her own affairs and
appointing a guardian and/or conservator to
handle affairs of the protected person
Slide #

28. ardianship/Conservatorship
Vocabulary
•Competency: legal determination of mental
capacity to handle own affairs
•Protected person: person legally deemed
mentally incompetent and for whom G/C
appointed
Slide #

29. ardianship/Conservatorship
More vocabulary
• Guardian: person appointed by circuit court to handle protected
person’s (PP) personal affairs, which may include medical
• Conservator: person appointed similarly to handle PP’s finances and
property
• Guardian ad litem: person (usually attorney) appointed by court to
protect incapacitated person’s interests in particular court
proceeding
Slide #

30. ardianship/Conservatorship
Guardianship/Conservatorship process
• anyone may petition court to have a G/C appted for an
alleged PP
• mental hygiene commissioner or circuit judge holds
hearing
• PP has right to be present, testify, unless physician
certifies inappropriate
• PP has a right to appointed counsel for proceedings
Slide #

31. ardianship/Conservatorship
Differences between G/C and POA
•POA initiated, chosen, and limited by P, G/C by court
•3rd parties not req’d to respect POA, but must respect
G/C’s court order
•G/C req’d to report to court periodically, no
reporting for POA
Slide #