Many people know they need to have a power of attorney. Not wanting to pay a lawyer for drafting, they turn to the Internet to find a form document that will be legal where they live. Is this a safe strategy? This is a tricky question, and the answer depends on the law of the state where the person lives, although many general principles are common. To illustrate, let’s consider these issues in the context of a West Virginian who has completed a power of attorney form in WV.

This blog focuses on Internet-based powers of attorney. It is the second in a series designed to help people think through issues that often arise when considering powers of attorney. The first provides an overview of WV power of attorney laws, and the third focuses on specific power of attorney forms designed to achieve narrow purposes. 

Isn’t a Power of Attorney Form in WV Good Enough?

Do a Google search for “power of attorney form in WV.” You will find a multitude of forms, from a “general” power of attorney form to a “motor vehicle” power of attorney form.  These forms can be helpful to acclimate you to the general purpose behind a power of attorney in West Virginia and elsewhere. Still, you should proceed with caution.

Many websites offer power of attorney forms in WV.  Those websites hope you will choose the option to create your power of attorney online with their help.  They will guide you through the form, offer you phrases to use, and even offer live chat support. Before you grab an online power of attorney form in WV or elsewhere, make sure you know what you are—and are not—getting.

First, that website will want your money.

Second, consider the website’s Privacy Policy. You may be compromising your privacy by using the online form. Here are just a few common, scary provisions:

• You are giving them information about your computer

• They collect information on the sites you visit

• They collect information on what you buy

• They give third parties your information

• They will use your information to try to sell you other products

Dig a little more, and you’ll find that these websites are not even WV-based businesses. They disavow offering legal advice and provide no guarantee that you’ll have a legally valid or correct power of attorney form when you finish. And because these websites offer only generic forms and no attorney-client relationship, you have no remedy if your power of attorney is not legally valid (or, worse yet, is valid but does not do what you thought it would do).

When you have an official relationship with an attorney, that attorney must meet certain ethical duties toward you. These duties include diligence, communication, confidentiality, and the avoidance of conflicts of interest. No online power of attorney form in WV or elsewhere will give you those assurances.

If you choose to use an online power of attorney form, at the end of the day, the website will have collected the information it wants, and you’ll walk away with something that looks great but may not meet your intentions. Unfortunately, many times, you won’t know this to be the case until it’s too late.

So, I Should Not Use an Online Power of Attorney Form in WV or Elsewhere?

For-profit website forms may be fine for getting an overview of typical power of attorney provisions, but the best course of action is to engage a lawyer experienced in these types of forms in your state. 

If you are determined to use an online form, you’ll need to do significant research. You will need to know what language conveys specific duties and whether the elements needed to make the power of attorney form legal in WV are present.  You will also need to check the form you choose against the provisions of state law.

If you need a power of attorney to allow an “agent” to make decisions about your financial affairs or property, the statutory power of attorney form in West Virginia’s Uniform Power of Attorney Act may do the trick. If you need to make a living will and create a medical power of attorney form, the form in the West Virginia Health Care Decisions Act contains the essential language and elements. You are not required to use these statutory forms, but the power of attorney form you use in WV must meet the requirements of those Acts. If an online form is outdated or if the wording is improper, you’ll have no recourse with the online company that supplied the form and its language.

And an online form can never offer you legal advice. Even when a website has a “live chat,” that person is not an attorney and cannot offer you legal advice. The entire responsibility for the form you complete online and what it contains is yours.  There is only your knowledge and the language contained in the form.

How do you know whether your circumstances and wishes are accurately reflected in the form? Could you have accidentally given your nephew permanent financial powers when what you really wanted was to have him pay your bills while you were out of town? 

Will My Online Power of Attorney Form Be Accepted in WV?

As long as a power of attorney form meets the requirements for a legal power of attorney in WV, it should be honored. If the person presented with the power of attorney is unsure about it, he or may request certification.

There are some reasons that are acceptable for a person to reject your power of attorney:

• The person is not required to enter into such a transaction with you

• Engaging with you or your agent is not consistent with federal law

• The person knows your agent’s authority has terminated

• A certification, if requested, was not provided in a timely manner

• The person believes, in good faith, that the power of attorney is not valid

• The person knows about or has made a referral regarding your well-being and safety to adult protective services, believing that you may be abused by your agent

Some Thoughts on Why You May Want to Consult an Attorney

The statutory power of attorney forms in WV may contain language that the average person may not use every day.  As a child, did you ever read Jabberwocky and wonder if those words were real or invented? You understood the poem, but not necessarily the words.  

The same is true for many people when it comes to the language in a power of attorney form–you may understand the basics but still be perplexed by some of the terms. Do you give your agent authority to act in all property decisions or just for your small business? Do you know what it means to give power of attorney over “personal and family maintenance?” 

Do you intend your power of attorney form to be a durable power of attorney? In WV, the Uniform Power of Attorney Act form is a durable power of attorney unless you specify otherwise. This form also cautions that granting certain specific powers could “significantly reduce your property or change how your property is distributed at your death.”  An attorney will help you to know what possible consequences your decisions may have for you.

There may be other decisions you need a trusted person to make on your behalf through a power of attorney in WV. Do you need a military power of attorney in WV?  Is there a state form for that? What if you need to go into addiction treatment out-of-state and want a trusted family member to have power of attorney in WV to care for your children?  Is there a form for that?

The decision to make a power of attorney in WV is personal, and it can be complex. An attorney will know the questions to ask you to get the right decision-making power to the person you need to have such power without giving that person more power than is needed. An attorney will be able to ensure your wishes for you and your estate are reflected in the power of attorney form or forms you create.  

The attorneys of Jenkins Fenstermaker believe that our clients benefit from the personalized attention we provide. When you’re considering a power of attorney form in WV, talk with us first. From simple to complex, we have the knowledge it takes to help you make decisions and put plans in place. Contact us today: (304) 523-2100 or toll free at 866.617.4736. You may also contact our firm online to schedule a consultation.