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Representation of Protected and Incapacitated Persons


Incapacitated means the person is incapable of handling his or her medical, financial or personal affairs.

A protected person is someone who, through a legal process, has been deemed to be incapacitated.

Appointed by Court

Conservator (W. Va. Code §44A–1–8)

  • Manages the estate and financial affairs of a protected person.
  • May be “limited” (W. Va. Code §44A–2–12) or “temporary” (W. Va. Code §44A–2–14).
  • Pays bills; responsible for bank account(s); may buy and/or sell real and/or personal property.
  • Cannot be held personally responsible by creditors for the protected person’s debts, such as medical bills.
  • Must file periodic reports with the court unless the court waives the reporting requirement.

Guardian (W. Va. Code §44A–1–8)

  • Responsible for the personal affairs of a protected person.
  • May be “limited” (W. Va. Code§44A–2–11) or “temporary” (W. Va. Code §44A–2–14)
  • Makes financial, medical and other miscellaneous decisions, such as residency.
  • Cannot be held personally responsible by creditors for the protected person’s debts, such as medical bills.
  • Court may appoint separate Conservator.
  • Must file periodic reports with the court unless the court waives the reporting requirement.

Guardian Ad Litem (W. Va. Code §56–4–10)

  • Attorney appointed by the court to represent a minor child or an individual who is mentally disabled.
  • May be appointed temporarily until another more permanent resolution is decided upon, such as Guardian and/or Conservator.
  • Duty to faithfully represent the interests of the individual for whom he or she is appointed.
  • Cannot be held personally responsible by creditors for the protected person’s debts, such as medical bills.
  • If appointment lasts for an extended period of time, must file periodic reports with the court unless the court waives the reporting requirement.

Appointed by the Individual (Principal)

General Power of Attorney (POA) (W. Va. Code §39B–1–101)

  • A notarized, or otherwise acknowledged, written document.
  • Takes effect immediately unless the document clearly states otherwise.
  • May be “durable” or “non-durable”; however, POA presumed to be “durable” (i.e., not terminated by the principal’s incapacity) unless the document clearly states otherwise.
  • POA may make financial, medical and other miscellaneous decisions on behalf of the principal as specified in the document of appointment.
  • POA is a mechanism that may be easily exploited to take advantage of the principal.
  • Important that the POA is someone in whom the principal has complete trust.
  • Cannot be held personally responsible by creditors for the principal’s debts, such as medical bills.
  • Existence of a POA “may eliminate, limit or supersede the need for the assistance or protection of a Guardian or Conservator, and any person so appointed [POA] is to be the first preferred nominee for Guardian or Conservator.” (W. Va. Code §44A–1–3)

Living Will (W. Va. Code §16–30–6)

  • A written document which must be witnessed when signed.
  • Dictates decisions about the principal’s health care if he or she is unable to communicate those decisions to health care personnel.
  • May be a good option for a principal who believes that no one else can be trusted to carry out his or her wishes.
  • Cannot take into account all of the circumstances that may exist at the time the Living Will is needed, including advancements in medicine since its signing.
  • A Living Will “may eliminate, limit or supersede the need for the assistance or protection of a Guardian or Conservator, and any person so appointed [by the Living Will] is to be the first preferred nominee for Guardian or Conservator.” (W. Va. Code §44A–1–3)

Medical Power of Attorney (MPOA) (W. Va. Code §16–30–6)

  • A written document which must be witnessed when signed.
  • If the principal becomes incapacitated, grants authority to another person to make health care decisions on behalf of the principal.
  • MPOA has the right of access to the principal’s medical information and the right to discuss that information with the principal’s health care providers.
  • Cannot be held personally responsible by creditors for the principal’s debts, such as medical bills.
  • Existence of a MPOA “may eliminate, limit or supersede the need for the assistance or protection of a Guardian or Conservator, and any person so appointed [MPOA] is to be the first preferred nominee for Guardian or Conservator.” (W. Va. Code §44A–1–3)
  • The following persons may not serve as MPOA or successor MPOA:
  • the principal’s treating health care provider;
  • an employee of the treating health care provider who is not related to the principal;
  • the operator of a health care facility serving the principal; or
  • an employee of the operator of a health care facility serving the principal who is not related to the principal. (W. Va. Code §16–30–4(c))

Appointed by Medical Provider

Medical Surrogate (W. Va. Code §16–30–8)

  • Must first inquire as to the existence and availability of a MPOA or Guardian.
  • Statute includes list of priorities regarding who may serve.
  • Selected by the attending physician or advanced nurse practitioner to make health care decisions on behalf of an incapacitated person.
  • Least favored form of making health care decisions because the individual does not choose the surrogate, rather the attending medical provider does.
  • Cannot be held personally responsible for the incapacitated person’s debts, such as medical bills.
  • The existence of a Medical Surrogate “may eliminate, limit or supersede the need for the assistance or protection of a Guardian or Conservator, and any person so appointed is to be the first preferred nominee for Guardian or Conservator.” (W. Va. Code §44A–1–3)

Legal Disclaimer

All information contained within this document is general legal information and does not constitute legal advice. West Virginia Advocates, Inc. does not warrant or guarantee the accuracy of the information as laws are subject to change. You are encouraged to seek advice from an attorney to insure that the information is up to date and accurate.

Funding

Funding for this publication is provided by the Rehabilitation Services Administration, the Administration on Developmental Disabilities, and the Substance Abuse and Mental Health Services Administration. Published by Disability Rights of West Virginia (DRWV). Content is solely the responsibility of DRWV and does not reflect the official views of the funding agencies.

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Representation of Protected and Incapacitated Persons (PDF)