Friday, June 08, 2012

New Power of Attorney law becomes effective today in WV

The Uniform Power of Attorney Act becomes effective in West Virginia today. The Act represents a substantial reform of the law controlling financial powers of attorney in our state. The Act does not make any changes regarding medical powers of attorney, that law is still found at WV Code ยง16-30-1, et seq.

To give you an idea of the scale of the changes, the new law is 60 pages long, whereas our old Uniform Durable Power of Attorney Act was only about a page long. There is a great deal of explicit detail in this law, lots of presumptions, duties, liabilities, and procedure built in that was absent in the old law.

A few of the highlights include:

Portability: The new law is explicit as to what is required for documents executed in other jurisdictions to be recognized here. And as more states continue to enact some version of the new uniform act (about a quarter of states have enacted it already) it will become more portable to other states, as well.

A statutory form: We now have an optional statutory form, as we do for Medical Power of Attorney. Most attorneys will agree that having a fill-in-the-blank form for financial power of attorney has pros and cons for West Virginia consumers, but the fact that a form now exists will likely create a substantial change in practice.

Third party liability for arbitrary refusal: Banks and other parties who are presented with a properly executed statutory power of attorney will have liability for wrongful refusal. Under our old law they had no such duty to respect powers of attorney, and sometimes would in response proffer their own form power of attorney, creating problems especially for principals who no longer had the capacity to execute new instruments.

Statutory mandatory duties for agents: Under the old law most powers of attorney were explicit only as to the authorities given therein to agents. Duties were rarely specified, and the old statute was mostly silent as to duties of agents, though agents bore general fiduciary duty pursuant to general principles of agency. The new Act explicitly imposes various duties, including the duty to keep records, on all agents.

For some more analysis and details about changes under the new Act please see what we posted about it as it was percolating through the legislative process earlier this year.


At 10:26 PM, Anonymous Jared Richards - Las Vegas Probate Attorney said...

The third party liability is an interesting idea. So many financial institutions resist powers of attorney. I like the idea of liability if harm results. Any idea of which states have adopted some form of the uniform act?

At 5:30 PM, Blogger cathy mcconnell said...

You can find a map here that is periodically updated to show which states have introduced and enacted the UPOAA.


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