Wednesday, February 15, 2012

Uniform Power of Attorney Act passes state House, on to Senate

After the 3rd reading the West Virginia House of Delegates voted unanimously to pass the Uniform Power of Attorney Act (HB 4390). Now it moves to the Senate.

The Uniform Power of Attorney Act (UPOAA)is a substantial reform to our current power of attorney law. Powers of Attorney in West Virginia are a favorite tools of financial exploiters. The UPOAA was designed to prevent financial exploitation by agents and also insure that Power of Attorney documents remain a low-cost, flexible and effective form of surrogate decision-making.

Among other things the UPOAA:

  • Provides greater protections for the principal, the agent, and third parties who are asked to rely on the agent’s authority;
  • Provides clearer guidelines for agents;
  • Recognizes that an agent who acts with care and competence for the best interest of the principal is not liable solely because he/she also benefits from the actions taken on behalf of the principal;
  • Encourages the acceptance of POAs by third parties, such as banks and insurance agents, and provides protections for third parties who in good faith rely on them;
  • Provides a statutory form POA, which explicitly explains an agent’s duties. The statutory form would also enhance clarity and predictability for third parties.
  • If widely adopted by other states, would ensure that a well thought out POA document executed in West Virginia would be recognized in other states, making POAs a more effective tool for advance planning.

The UPOAA seeks to prevent financial abuse by:

  • Including mandatory fiduciary duties for the agents;
  • Providing liability for agent misconduct;
  • Provisions for judicial review of the agent’s conduct;
  • Requiring express language in the POA document to allow dissipation of the principal’s property or to alter estate plans;
  • Providing that third parties may refuse the document if they have the belief that “the principal may be subject to physical or financial abuse, neglect, exploitation or abandonment by the Agent” and reports these suspicions to Adult Protective Services.


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