bivens1An interesting elder law case in West Virginia highlights the differences between the authority an Agent has to act under a health care power of attorney versus a financial power of attorney. Note, everyone should have both power of attorney instruments in effect.

In May 2016, the Supreme Court of Appeals of West Virginia issued a decision in the Wanda Williams v. CMO Management, LLC case. Robert Thompson suffered from Alzheimer’s disease and resided at a nursing facility from 2009 until his death in 2011. The parties stipulated that he was mentally incompetent at all relevant times.

After Mr. Thompson’s death, Wanda Williams brought suit on behalf of herself, his Estate, and wrongful death beneficiaries against CMO. The suit alleged abuse and neglect at the nursing facility, leading to Mr. Thompson’s injuries and eventual death. CMO argued to the trial court that the two-year limitations period should apply and bar any claims that accrued prior to April 19, 2011. The trial court agreed with CMO, and Ms. Williams appealed.

Ms. Williams argued that the trial court improperly refused to apply the tolling provision in the savings statute. She also alleged that the trial court failed to apply the discovery rule to toll the statute of limitations until the date of Mr. Thompson’s death due to his incapacity and the absence of a legal representative to act on his behalf. Prior to his incapacity, Mr. Thompson had only executed a medical power of attorney instrument, and not a general financial power of attorney. After his death, Ms. Williams was appointed as Personal Representative of his Estate.

The Supreme Court of Appeals found that this lack of a legal representative for Mr. Thompson while he was still alive creates an issue as to when Mr. Thompson’s alleged injuries were subject to discovery. Meanwhile, CMO contended that the medical power of attorney that Ms. Williams had over Mr. Thompson was sufficient to charge her with knowledge of his injuries for purposes of a statute of limitations analysis. The Supreme Court of Appeals disagreed, finding that a person holding a medical power of attorney’s sole function is the authority to make health care decisions on behalf of an incapacitated person; the medical power of attorney does not have the power to make binding legal decisions for the incapacitated person. The Court specifically found that though Ms. Williams may have had concerns about Mr. Thompson’s care prior to his death, that did not impose a duty upon her to institute suit on his behalf. Because Ms. Williams was only a medical power of attorney, and not a general power of attorney, Ms. Williams had no power to stand in his “legal shoes.”

In this case, it appears that while Ms. Williams may have known, or by reasonable diligence should have known of Mr. Thompson’s injuries and/or claims, she was not the injured party and did not have standing to act on his behalf until he died; she was under no “legal” duty to discover the existence of a compensable claim.

Our take away? Every individual should have both a health care power of attorney and financial power of attorney because they serve very different, yet equally important purposes.

If you’re curious about assigning a health care power of attorney or a financial power of attorney, or if you’d like to discuss any arm of elder law, please feel free to get in touch with a representative here at Bivens and Associates of Arizona. We’re your Arizona elder law firm.