WEST virginia legislature
2018 regular session
House Bill 4320
By Delegates McGeehan and Folk
[Reported out February 7, 2018; Referred to the Committee on the Judiciary.]
A BILL to amend and reenact §39B-1-114 of the Code of West Virginia, 1931, as amended; and to amend and reenact §39B-2-101 of said code, all relating to limiting the ability of an agent under a power of attorney to take self-benefiting actions; clarifying the presumption that an act is not within the scope of authority granted in a power of attorney when an agent benefits from the act to the detriment of an ancestor, spouse, heir, or descendant; and clarifying the prohibition against an agent exercising authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.
Be it enacted by the Legislature of West Virginia:
ARTICLE 1. GENERAL PROVISIONS.
§39B-1-114. Agent's duties.
(a) Notwithstanding provisions in the power of attorney, an agent who has accepted appointment shall:
(1) Act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal's best interest;
(2) Act in good faith; and
(3) Act only within the scope of authority granted in the power of attorney.
(b) Except as otherwise provided in the power of attorney, an agent who has accepted appointment shall:
(1) Act loyally for the principal's benefit;
(2) Act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest;
(3) Act with the care, competence and diligence ordinarily exercised by agents in similar circumstances;
(4) Keep a record of all receipts, disbursements and transactions made on behalf of the principal;
(5) Cooperate with a person that has authority to make health-care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal's best interest; and
(6) Attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including:
(A) The value and nature of the principal's property;
(B) The principal's foreseeable obligations and need for maintenance;
(C) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer and gift taxes; and
(D) Eligibility for a benefit, a program or assistance under a statute or regulation.
(c) An agent that acts in good faith is not liable to any beneficiary of the principal's estate plan for failure to preserve the plan.
(d) An agent that acts with
care, competence and diligence for the best interest of the principal is not
liable solely because the agent also benefits from the act or has an individual
or conflicting interest in relation to the property or affairs of the
However, when the agent benefits from the act to the
substantial and direct detriment of an ancestor, spouse, heir or descendant of
the principal a presumption is created that the act was not within the scope of
authority granted in the power of attorney, unless the authority to perform
that specific act is expressed with particularity in identifying the existing
property interest and provided in the power of attorney.
(e) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent's representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence and diligence under the circumstances.
(f) Absent a breach of duty to the principal, an agent is not liable if the value of the principal's property declines.
(g) An agent who exercises authority to delegate to another person the authority granted by the principal or who engages another person on behalf of the principal is not liable for an act, error of judgment or default of that person if the agent exercises care, competence and diligence in selecting and monitoring the person.
(h) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements or transactions conducted on behalf of the principal or provide an accounting unless: ordered by a court or requested by the principal, a guardian, a conservator, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal or, upon the death of the principal, by the personal representative or successor in interest of the principal's estate. If so requested, within 30 days the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional 30 days. If an agent fails or refuses to comply with the provisions of this section, the court may award the principal or other authorized party requesting the disclosure reimbursement of reasonable attorneys fees and costs incurred.
ARTICLE 2. AUTHORITY.
§39B-2-101. Authority that requires specific grant; grant of general authority.
(a) An agent under a power of attorney may do the following on behalf of the principal or with the principal's property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject to:
(1) Create, amend, revoke or terminate an inter vivos trust;
(2) Make a gift;
(3) Create or change rights of survivorship;
(4) Create or change a beneficiary designation;
(5) Delegate authority granted under the power of attorney;
(6) Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;
(7) Exercise fiduciary powers that the principal has authority to delegate; or
(8) Disclaim property, including a power of appointment.
(b) Notwithstanding a grant
of authority to do an act described in this section, unless the power of
attorney otherwise provides, an agent may not exercise authority under a power
of attorney to create in the agent, or in an individual to whom the agent owes
a legal obligation of support, an interest in the principal's property, whether
by gift, right of survivorship, beneficiary designation, disclaimer or otherwise,
unless the power of attorney expresses in the grant of authority the
specific act and identifies the existing property interest with particularity,
rather than in general terms.
(c) Subject to subsections (a), (b), (d) and (e) of this section, if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in §39B-2-104 through §39B-2-116 of this code.
(d) Unless the power of attorney otherwise provides, a grant of authority to make a gift is subject to the provisions of §39B-2-117 of this code.
(e) Subject to subsections (a), (b) and (d) of this section, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.
(f) Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.
(g) An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal's successors in interest as if the principal had performed the act.
NOTE: The purpose of this bill is to clarify the law relating to an agent’s duties and authority while acting under a power of attorney.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.