Consider these two different scenarios: a Richmond business owner is attending an important conference in another state when he receives a call from his assistant about an urgent matter that requires his attention back home. Meanwhile, in a Richmond hospital, a grieving family faces the prospect of making critical medical decisions for their beloved grandfather, but because he cannot communicate with them and leaves no instructions behind, they don’t know what to do. They would honor his preferences if only they knew what they were.
Whether in business matters or matters of life and death, knowing a trusted representative could legally act on your behalf can help you avoid these difficult situations and provide peace of mind for you, your business associates, and your loved ones. That’s where a Virginia POA — power of attorney — steps in.
Virginia offers several types of power of attorney, each with its rules and requirements. This blog explains the different types of power of attorney in Virginia, how to obtain a POA, and what’s involved in the process.
How does a POA fit into a comprehensive estate plan? Contact PJI Law, PLC at (804) 653-3450 to schedule a consultation. Our knowledgeable and experienced power of attorney lawyers will assist you with personalized service and attention.
What is a Power of Attorney in Virginia?
A power of attorney is a legal instrument that confers authority to an individual, known as the “agent” or “attorney-in-fact”, to act on another person’s behalf, known as the “principal.” Depending on the specific type of power of attorney, this granted authority can be broad or limited.
Powers of attorney typically come into play when the principal is unavailable to tend to financial matters or other affairs like real estate transactions, or cannot verbalize their health care choices due to incapacity.
As attorneys experienced in estate planning know, a power of attorney is a crucial component of a comprehensive estate plan. It gives the principal the ability to handle their affairs through an authorized individual they trust in accordance with their preferences and best interests.
What are the Different Types of Power of Attorney in Virginia?
Virginia offers several options for power of attorney.
Durable Power of Attorney
A durable power of attorney offers the principal the peace of mind of knowing that even if they become unable to manage their affairs due to incapacitation or permanent disability, their attorney-in-fact will act on their behalf as specified in the document.
Most of us manage our personal finances but consider situations where you might also manage properties or business matters. With a durable power of attorney, your trusted agent can oversee the management of these affairs, making decisions that align with your desires and interests as outlined in the document.
Springing Power of Attorney
As the name suggests, a springing power of attorney takes effect under predefined conditions such as mental incapacitation or permanent disability.
For example, if you have been diagnosed with a health condition, you could establish a springing power of attorney that activates when your condition reaches a certain level, as documented by a healthcare professional.
The powers stated in this document ensure the prompt handling of your personal and financial matters by your attorney-in-fact during health adversities.
General Power of Attorney
With a general power of attorney, your appointed agent can oversee various tasks, from personal financial matters to more complex decisions, so that your affairs run smoothly in your absence.
The authority granted in a general power of attorney could span from managing everyday banking transactions to endorsing significant contracts on your behalf.
Limited Power of Attorney
In contrast, a limited power of attorney confers authority to your agent in specific ways for a clearly defined or limited purpose or period. For example, with a limited power of attorney, your agent could complete a real estate transaction on your behalf if you cannot be physically present.
A limited power of attorney assures the principal that the agent or attorney-in-fact will accomplish specific tasks according to their instructions, regardless of their availability.
Thus far, these powers of attorney have primarily pertained to financial and specific transactions. However, as an experienced attorney can attest, when creating an estate plan there is another critical subject to consider – your health care decisions. To address these vital considerations, Virginia law offers a health care power of attorney – more commonly known as an advance medical directive.
Health Care Power of Attorney / Advance Medical Directive
As you and your attorney plan for your future, a health care power of attorney or advance medical directive should become part of your estate plan. This legal document enables you to designate a trusted individual to make medical decisions on your behalf if you become unable to communicate your preferences.
Often referred to as your health care agent or proxy, you could choose to entrust this person with decisions ranging from minor medical procedures to life-saving measures, depending on the scope of authority you stipulate in the health care power of attorney or advance medical directive.
Your health care agent or proxy coordinates with your medical team to respect and implement your treatment preferences. A skilled attorney can guide you through this process and create a legally sound document that complies with the law and accurately states your desires.
Would you like to learn more about a health care power of attorney/advance medical directive? We invite you to read our blog, “The Importance of Having a Virginia Advance Medical Directive in Place.”
Obtaining a Power of Attorney
When going through the process of creating a power of attorney, you first want to carefully consider the individual who will serve as your agent. This person should be a competent adult who has earned your trust because a power of attorney will give them the authority to act on your behalf as your agent.
Next, determine the type and extent of the authority you want to confer to your agent. As we noted above, this authority can be limited, e.g. handling real estate property transactions, or much broader in scope to include your financial matters and health care decisions.
Working with a knowledgeable and experienced attorney, you can discuss your unique circumstances and establish a legal document or multiple legal documents that meet your needs. Your attorney will make sure the document stipulates your authorized agent and the scope of their authority because financial institutions and other institutions will also review it.
Notarizing Your Power of Attorney
Once completed, the principal’s signature on a power of attorney must be notarized, per Virginia law, to be considered genuine. A notary public will confirm your identity and the fact that you consent to sign the power of attorney willingly and not under duress.
If you have notarized a durable power of attorney that could potentially be used for real estate property transactions, it should be recorded in the circuit court of the county in which the property is located.
Another scenario in which a power of attorney could terminate is if a court appoints a guardian or conservator for you unless the court order specifies otherwise.
How Powerful Is a Power of Attorney in Time of Need?
A power of attorney carries significant implications in business matters and medical emergencies where an individual cannot verbalize their wishes, giving others the benefit of knowing exactly what the principal desires even if they are unavailable or incapacitated.
Business-Related Scenario
Imagine a scenario where a business owner becomes incapacitated due to illness or injury. With a valid power of attorney, the appointed agent or attorney-in-fact can step in to manage the day-to-day operations of the business, make critical decisions, sign contracts, access financial accounts, and represent the owner in legal matters. With the agent fulfilling these duties, it ensures continuity in business operations and prevents disruptions that could adversely affect the company’s performance, employees, and reputation.
Medical Emergency Scenario
Consider a situation where an individual experiences a serious accident, leaving them unable to communicate their medical preferences or decisions. If this person has designated a health care power of attorney, the appointed agent can make medical decisions on their behalf based on the written authority and instructions outlined in the power of attorney document. These instructions include choices about medical treatments, surgeries, medications, and end-of-life care.
With a health care power of attorney, the appointed agent can ensure that all involved parties respect the individual’s wishes, alleviating the burden on family members who may otherwise struggle to make difficult decisions during such critical times.
A Virginia power of attorney empowers individuals to plan for unforeseen circumstances and provides clarity and assurance to business and health care decision-making processes, ultimately reducing stress and uncertainty in stressful situations.
Successor Agents and Powers of Attorney
When drafting powers of attorney with the assistance of an experienced attorney, you can secure greater peace of mind for your family and business associates by appointing a successor agent. The individual designated as the successor agent assumes authority when the original agent cannot fulfill their duties due to illness, incapacity, or other reasons. Designating a successor trustee provides greater security because if your initially appointed agent cannot act on your behalf, someone you trust can still manage your affairs and assets.
As your attorney will counsel, when granting another person the authority to act on your behalf, making an informed decision is in your best interest. Whether authorized with a broad range of acts or given specific authority confined to a single transaction, your designated agent should have earned your trust, have your best interests in mind, and be willing to act according to your wishes.
Frequently Asked Questions about Power of Attorney in Virginia
What is a power of attorney (POA) in Virginia?
A power of attorney is a legal document granting written authority to an agent or attorney-in-fact to make decisions on behalf of the principal (the person creating the power of attorney) in financial matters, business matters, or health care matters when the principal cannot act.
How can I create a power of attorney in Virginia?
The best way to create a power of attorney is by consulting a Virginia estate planning lawyer who can help you determine your choice of agent and draft a document that complies with state laws and requirements.
What types of decisions can an agent make under a power of attorney in Virginia?
An appointed agent can make decisions related to financial matters, health care choices, real estate property transactions, taxes and tax matters, and legal affairs as specified in the power of attorney document.
Is it necessary to notarize a power of attorney in Virginia?
Yes, to comply with Virginia law, you must sign the power of attorney document in the presence of a notary public to validate the authenticity of the signature and the fact that you are establishing the document freely and not under duress.
Should I include a power of attorney in my Virginia estate plan?
Depending on the circumstances of each person, a power of attorney can be a crucial component of estate planning, allowing designated individuals to manage assets, make financial decisions, and handle legal matters on behalf of the principal. Because we don’t know what the future will bring, a health care power of attorney, also known as an advance directive, is something everyone should include in their estate plan for their benefit and the benefit of their loved ones. It makes dealing with a medical emergency easier when you can provide prior written instructions for your agent, family, and medical team.
How long does a power of attorney remain valid in Virginia?
In Virginia, a power of attorney remains in effect until the principal dies, revokes the document, until the specific purpose outlined in the power of attorney is fulfilled, or if the agent resigns without a named successor.
What is the Uniform Power of Attorney Act in Virginia?
The Uniform Power of Attorney Act in Virginia is a legislative framework that establishes guidelines for the creation, execution, and enforcement of power of attorney documents within the state. This act seeks to promote consistency and clarity in the language used in the power of attorney documents, delineating the powers granted to agents and specifying obligations and responsibilities.
Under this act, key provisions may include definitions of terms related to powers of attorney, rules governing the execution and signing of power of attorney documents, guidelines for the agent’s conduct, protection for third parties who act in good faith based on the power of attorney, and mechanisms for addressing disputes or abuse of power.
By adopting the Uniform Power of Attorney Act, Virginia aligns its practices with standardized principles and regulations, enhancing transparency, safeguarding against exploitation, and facilitating smoother transactions involving power of attorney arrangements.
How can a Virginia power of attorney prevent financial exploitation of the principal?
A Virginia power of attorney can serve as a crucial tool in protecting the principal by establishing clear guidelines, oversight mechanisms, and legal protections. By granting written authority to a trusted agent, the power of attorney document outlines the specific powers and limitations of the agent, reducing the risk of unauthorized actions or abuse.
Furthermore, the Virginia Uniform Power of Attorney Act and relevant statutes, such as 18.2-178.2, provide legal frameworks to deter and penalize agents who engage in this type of exploitation of vulnerable adults. Agents under a power of attorney are subject to scrutiny by organizations like Virginia Adult Protective Services (APS), which receive and investigate reports of suspected elder abuse, neglect, or exploitation. Reporting suspected abuse can help prevent further financial harm.
Consult attorneys who focus on estate law for more information.
Does a Virginia power of attorney allow the agent to view the principal’s tax information?
A Virginia power of attorney can authorize an agent to discuss designated tax issues with the Virginia Department of Taxation. This authorization is typically granted through a Power of Attorney and Declaration of Representative (Form PAR 101) form. The agent may be empowered to access tax information, represent the grantor in tax-related interactions, and handle specific tax issues on behalf of the grantor.
How can power of attorney lawyers in Virginia help me?
Experienced attorneys can guide you through the process of creating a power of attorney as a vital part of your overall estate plan, discussing important issues like financial planning, medical directives, and your choice of agent.
Do I need power of attorney lawyers to create a power of attorney in Virginia?
While it is not mandatory to have a lawyer, consulting knowledgeable and experienced power of attorney lawyers can provide valuable insights, ensure legal compliance, and tailor the power of attorney to meet your specific needs and circumstances.
Let the Power of Attorney Lawyers at PJI Law, PLC Assist You with Personalized Service and Attention
With the right power of attorney, you can secure your future, knowing your affairs are in trusted and capable hands. Have you been typing “power of attorney lawyer near me,” into your search bar?
Whether preparing for a future outcome or dealing with an urgent situation, the power of attorney lawyers at PJI Law can help you determine the type of power of attorney that best serves you and your individual situation.
At PJI Law, our valued clients receive our complete dedication, personal attention, and courteous, white-glove service. Contact us at (804) 653-3450 or complete our online form to schedule a consultation. Let us establish a Virginia POA that aligns with your personal goals and meets your family’s needs.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.
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Richmond, VA 23228
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