Reviewing Revocable Living Trust

Do I Need a Power of Attorney in Virginia?

Updated March 2022

power of attorney, or POA, is a legal document that allows you, known as the principal, to appoint a trusted individual, known as your agent or attorney-in-fact,  the legal authority to act on your behalf under specific circumstances.

Types of Power of Attorney (POA)

General power of attorney: is effective upon signing and terminates when the principal revokes the POA, dies.  It allows your agent to do anything you can do for yourself, including, but not limited to:

  • Manage your financial matters
  • Manage your business
  • Buy or sell things as necessary
  • Cash or deposit checks
  • Collect or pay debts
  • Apply for public benefits (Medicaid, Social Security, Medicare, etc.)
  • Sue on your behalf
  • Access to your health information

Special power of attorney: also known as limited power of attorney, restricts the agent’s authority to a certain time period or specific act, like the closing of a real estate transaction.

Springing power of attorney:  goes into effect only under certain circumstances, for instance, if you become incapacitated or unavailable because you’ve been deployed.

Health care power of attorney:  also known as an advance medical directive or medical power of attorney, gives your agent the authority to make healthcare decisions for you when you no longer can make them for yourself.

Durable power of attorney:  is like a general power of attorney, it is effective upon signing, and  remains effective even if you become incapacitated.

Uniform Power of Attorney Act

The Commonwealth of Virginia is one of 25 states that have enacted the Uniform Power of Attorney Act, which states that a POA is now considered durable unless it explicitly states otherwise.  It remains in effect if you become temporarily or even permanently incapacitated and can no longer make decisions or act for yourself. A durable power of attorney may eliminate the need to have a court appoint a guardian or conservator for you.  In other words, a durable POA allows you to choose a trusted agent now to act on your behalf if it becomes necessary in the future.  All power of attorney ends upon the death of the principal.

What are the agent’s responsibilities?

Because there is no formal oversight of an agent, it is important to choose someone you can trust to act on your behalf and manage your affairs, as you would wish, when you cannot.  An agent should:

  • Act only within the scope of authority granted by the POA
  • Always act in your best interests and for the principal’s benefit.
  • Attempt to preserve the principal’s estate plan.
  • Keep records and documents detailing all transactions and expenditures made on behalf of the principal.
  • Cooperate with the person who has authority over health care decisions to carry out the principal’s wishes.

It could also be a good idea to name more than one agent if your agent cannot help you when the time comes.

You can name co-agents, which are two or more people who can act as agents. You can even call a successor agent, someone who can serve as a backup agent if the first person named as agent cannot perform due to death, incapacity, resignation, or refusal to serve as such).

What can’t a power of attorney do?

Although a durable power of attorney may give broad power over financial or medical decisions to the agent, there are still several things that an agent can’t do on your behalf.  An agent cannot:

  • Change the principal’s will, trust, or other estate planning documents.
  • Make any decisions after the principal’s death.
  • Act outside the principal’s fiduciary interest.
  • Act for the agent’s benefit.
  • Transfer the POA to someone else.
  • Vote for the principal

When does a POA go into effect?

A power of attorney goes into effect immediately at signing or a future date specified in the document.  In the Commonwealth of Virginia, the original document must be signed and legalized by a notary public. A POA remains valid until:

  • The principal dies.
  • The agent resigns, dies, or becomes incapacitated.
  • You revoke the agent’s authority.
  • The purpose of the POA is satisfied.
  • The power of attorney terminates according to its terms.

Giving someone a power of attorney does not prevent you from making decisions or conducting business yourself.  As long as you are competent, you will not lose the right to manage your own affairs if you sign a POA.

The first step to generating power of attorney documents is to speak with a knowledgeable Virginia estate planning attorney.   An experienced attorney will ask the right questions, discuss your needs and concerns, and create the documents that will meet your needs and wishes.

Northern Virginia Trusts & Estates

Northern Virginia Trusts & Estates provides affordable estate planning services and legal advice on power of attorney for Virginia families. Our firm understands the intricacies of estate planning. It offers a range of services from simple, a la carte pricing for single items to comprehensive offerings that cover a variety of preparations.

For more information about power of attorney, our estate planning services, and packages, contact our office today at 703.938.3510 or visit our website: www.NorthernVirginiaTrustsAndEstates.com.