Power of Attorney

Virginia Estate Planning Attorney

A healthy, competent adult can handle his or her own financial and business affairs. However, a life-changing event can make that impossible.

Have you considered who will manage your affairs if you have an accident, develop dementia, have a stroke? Will someone be able to act in your stead if you take a trip out of the country? If you cannot take care of your financial or medical needs, someone will need to act for you to pay your bills, interact with your bank, make financial and/or medical decisions, or complete other tasks.

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What is a power of attorney?

A power of attorney is a written document that authorizes one person to act on behalf of another. The person giving the power of attorney is the ‘principal’ and the person who is authorized to act on behalf of the principal is the ‘attorney-in-fact’ or ‘agent’. The principal must be able to understand the nature and consequences of the power of attorney at the time he or she signs it in order for the power of attorney to be legally valid. This decision is made at the time you sign it, so it is still valid even if you later become incapacitated (if the power of attorney is “durable”).

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Types of Powers of Attorney

Durable power of attorney

Under Virginia’s Uniform Power of Attorney Act, a power of attorney is “durable” unless it expressly states otherwise. A durable power of attorney will remain in effect even if you become incapacitated (temporarily or permanently unable to make your own decisions due to mental impairment). Having a durable power of attorney may eliminate the need to have the court appoint a guardian or conservator for you. If the power of attorney expressly states that it is not durable, it loses its effectiveness if you become incapacitated.

General power of attorney

A general power of attorney is typically used to allow your agent to handle your affairs during a period of time when you are unable to do so. For example, when you are traveling out of the state or country or when you are physically or mentally unable to handle your affairs. A general power of attorney is often part of an estate plan as well.

Powers usually include the ability to:

Buy and sell property
Buy, manage or sell real estate
Handle banking transactions
Enter safety deposit boxes
File tax returns

Tend to government benefits
Enter into contracts
Purchase life insurance
Settle claims
Exercise stock rights

Durable power of attorney

General power of attorney

Powers usually include the ability to:

Buy and sell property
Buy, manage or sell real estate
Handle banking transactions
Enter safety deposit boxes
File tax returns

Tend to government benefits
Enter into contracts
Purchase life insurance
Settle claims
Exercise stock rights

Limited power of attorney

A limited or “special” power of attorney authorising your agent to act on your behalf only in specific situations. For example, you may be traveling outside the state or country, or may be unable to handle your affairs because of other commitments.

Common special powers of attorney include the ability to:

Make financial decisions
Manage business interests
Handle banking transactions
Make estate planning decisions, including gifts
Enter safety deposit boxes

Handle government issues and U.S. securities transactions
Collect debts
Borrow money
Sell, manage or mortgage real estate
Sell personal property

Limited power of attorney

Common special powers of attorney include the ability to:

Make financial decisions
Manage business interests
Handle banking transactions
Make estate planning decisions, including gifts
Enter safety deposit boxes
Handle government issues and U.S. securities transactions
Collect debts
Borrow money
Sell, manage or mortgage real estate
Sell personal property

What is The Uniform Power of Attorney Act

Acting in accordance with the principal’s reasonable expectations, to the extent actually known, and, otherwise, in the absence of such knowledge, then in principal’s best interest.

Acting in good faith and so as not to create a conflict of interest that would interfere with the agent’s impartiality.

Acting within the scope of authority granted in the power of attorney.

Act loyally for the principal’s benefit;

Acting with the care, competence, and diligence ordinarily exercised by agents in similar circumstances, and, if selected as a result of special skills or expertise, acting with such care, competence, and diligence under the circumstances.

Keeping a record of all receipts, disbursements, and transactions made on behalf of the principal.

Attempting to preserve the principal’s estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal’s best interest. Based on things such as the value and nature of the property, foreseeable obligations and need for maintenance, minimization of taxes, and eligibility for a benefit or other program.

Disclosing, upon request, receipts, disbursements, or transactions conducted on behalf of the principal.

Can a Power of Attorney Be Terminated?

A power of attorney terminates when:

you die
you revoke the agent’s authority
the agent resigns, dies or becomes incapacitated
the power of attorney terminates according to its own terms
the purpose of the power of attorney is accomplished
unless the power of attorney otherwise provides, an action for divorce, annulment, support, child custody or visitation is filed between the principal and the agent.