[WV] Is a power of attorney valid even if it’s not filed with the county, and can it be amended to add a co-agent?

Lexi, Chatbot

I understand how concerning this situation must be for you. Can you tell me if your sister has been acting on behalf of your mother using the power of attorney?

Lexi, Chatbot

Have you or your mother discussed this power of attorney with your sister, and what has her response been?

Dan

Hello and welcome to our service! I'm Dan, a Legal Expert. I’m reviewing your question and will respond again shortly. I know your situation is complicated. Is there any additional information you think might be helpful?

Dan

A power of attorney (POA) is a legal document that allows someone to act on another person's behalf. A durable power of attorney remains in effect even if the person who granted it becomes incapacitated.

Now, could you let me know which state your mother resides in? This can help me provide more specific guidance.

Dan

Thanks for letting me know your mother is in West Virginia. Has your mother ever expressed her wishes regarding who should have power of attorney? This can help us understand if your sister's claim aligns with your mother's intentions.

Dan

Got it, thanks for sharing that. It sounds like a challenging situation. Do you know if your mother signed any documents granting your sister power of attorney, or if there was any discussion about it with a lawyer?

Dan

In West Virginia, a power of attorney does not need to be filed with the county to be valid. The key requirement is that it must be signed by the principal (your mother) and notarized. Once these conditions are met, the document is generally considered legally binding. (WV Code § 39B-1-105)

However, if the power of attorney is intended to be used for real estate transactions, it may need to be recorded with the county clerk to be effective for those specific purposes. (WV Code § 39B-1-119)

Your sister does not need to be present for your mother to amend the power of attorney to include you. Here's how your mother can proceed:

1. Consult with an Attorney
   It's advisable for your mother to consult with an attorney who specializes in estate planning or elder law. They can help draft a new power of attorney document that includes both you and your sister as agents.

2. Draft a New Power of Attorney Document
   The attorney will prepare a new document that specifies both you and your sister as co-agents. This document should clearly outline the responsibilities and powers each of you will have.

3. Sign and Notarize the Document
   Your mother will need to sign the new power of attorney document in the presence of a notary public. This step is crucial to ensure the document's validity.

4. Communicate the Change
   Once the new document is signed and notarized, it's important to inform any relevant parties (such as banks or healthcare providers) about the change in representation.

5. Keep Copies Safe
   Ensure that copies of the new power of attorney are kept in a safe place and that all involved parties have access to them if needed.

Please let me know if you have further questions.

Dan

In West Virginia, filing a power of attorney with the county does not make it durable. A durable power of attorney is specifically designed to remain in effect even if the principal becomes incapacitated. This is determined by the language within the document itself, not by whether it's filed with the county.

Here's how you can proceed:

1. Draft Separate Powers of Attorney
   You can have different powers of attorney for different purposes. For example, you could have a durable power of attorney for financial matters, which would allow you to handle your mother's estate, and a separate power of attorney for healthcare or day-to-day decisions, which your sister could manage.

2. Consult an Attorney
   It's advisable to consult with an attorney who can help draft these documents according to your mother's wishes. They can ensure that each document clearly outlines the specific powers granted to each agent.

3. Sign and Notarize
   Your mother will need to sign these documents in the presence of a notary public to ensure their validity.

4. Communicate with Relevant Parties
   Once the documents are signed, inform any relevant parties (like banks or healthcare providers) about the changes in representation.

5. Keep Copies Safe
   Ensure that copies of these documents are kept in a safe place and accessible to all involved parties.

Please let me know if you have further questions.

Dan

Typically, the person who holds the power of attorney (your sister, in this case) should have a copy of the document. Additionally, if an attorney was involved in drafting it, they might also have a copy. It's also possible that your mother has a copy stored with her important documents.

If you're unable to obtain a copy from these sources, you might consider discussing the matter with your mother and suggesting she request a copy from your sister or her attorney. Let me know if there's anything else you'd like to know!

Dan

No she could not.

Dan

I'm happy to hear I was able to answer your question.

Dan

You're welcome.