HB 4320 — Limiting the ability of an agent under a power of attorney to take self-benefiting actions

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Red = new code to be enacted WEST virginia legislature regular session ENROLLED Committee Substitute for House Bill 4320 By Delegates McGeehan and Folk [Passed[Reported Marchout 10,February 7, 2018;

inReferred effectto ninetythe daysCommittee fromon passage.]the ANJudiciary.] ACTA BILL to amend and reenact §39B-1-114 of the Code of West Virginia, 1931, as amended;

requiring express grant of authority to exercise authority over the content of electronic communications sent or received by the principal;

Agent’sAgent's duties.

(1) Act in accordance with the principal’sprincipal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’sprincipal's best interest;

(1) Act loyally for the principal’sprincipal's benefit;

(2) Act so as not to create a conflict of interest that impairs the agent’sagent's ability to act impartially in the principal’sprincipal's best interest;

(5) Cooperate with a person that has authority to make health-care decisions for the principal to carry out the principal’sprincipal's reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal’sprincipal's best interest;

and (6) Attempt to preserve the principal’sprincipal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal’sprincipal's best interest based on all relevant factors, including:

(A) The value and nature of the principal’sprincipal's property;

(B) The principal’sprincipal's foreseeable obligations and need for maintenance;

(c) An agent that acts in good faith is not liable to any beneficiary of the principal’sprincipal's estate plan for failure to preserve the plan.

(e)However, Ifwhen anthe agent isbenefits selectedfrom bythe act to the principalsubstantial becauseand direct detriment of specialan skillsancestor, orspouse, expertiseheir possessedor bydescendant of the agentprincipal ora inpresumption relianceis oncreated that the agent’sact representationwas thatnot within the agentscope hasof specialauthority skillsgranted orin expertise, the specialpower skillsof orattorney, expertiseunless mustthe beauthority consideredto inperform determiningthat whetherspecific theact agentis hasexpressed acted with care,particularity competencein identifying the existing property interest and diligenceprovided underin the circumstances.power of attorney.

(f)(e) AbsentIf aan breachagent is selected by the principal because of dutyspecial toskills or expertise possessed by the principal,agent anor in reliance on the agent's representation that the agent ishas notspecial liableskills ifor expertise, the valuespecial ofskills or expertise must be considered in determining whether the principal’sagent propertyhas declines.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.

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’sprincipal's estate.

(a) An agent under a power of attorney may do the following on behalf of the principal or with the principal’sprincipal'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:

(6) Waive the principal’sprincipal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;

(9)(b) ExerciseNotwithstanding a grant of authority overto do an act described in this section, unless the contentpower of electronicattorney communications,otherwise asprovides, definedan agent may not exercise authority under a power of attorney to create in 18the U.S.C.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.

Section(c) 2510(12)Subject sentto orsubsections received(a), by(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 principal.agent has the general authority described in §39B-2-104 through §39B-2-116 of this code.

(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, (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.

(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’sprincipal'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.