Choosing an agent and granting power of attorney is an important aspect of your estate plan.
However, it’s important that you know what your Virginia power of attorney covers, and the gaps that you may need to fill with other estate planning tools.
Regardless, appointing an agent and establishing a Virginia power of attorney is a good first step in protecting yourself and the future of your estate.
What is a Virginia Power of Attorney (POA)?
Your Virginia power of attorney designates someone who acts on your behalf when you are unable to act for yourself.
Power is appointed to your “agent,” or the person who is responsible for acting in your best interest.
Your agent is usually given limited powers that could include items such as making healthcare decisions (if a “medical directive” is absent), exercise your voting rights, and arranging for your burial or the deposition of your remains.
What is a “durable” Virginia Power of Attorney?
A durable Virginia power of attorney is a document that is sustained under mental or other incapacity.
In other words: your agent remains in tact, whereas a “non-durable” power of attorney designation would terminate upon your mental incapacity.
Should you neglect to establish a durable power of attorney, your relatives are left to petition the court for agency over your care.
Mental incapacity legally restricts you from appointing a valid agent under durable power of attorney, so it is necessary to prepare these documents ahead of time.
How Do I Establish a Power of Attorney?
Your agent receives authority to make these decisions on your behalf when you sign a document granting power of attorney.
If incapacitated, your POA is signed in your presence by someone you’ve directed during your incapacity.
Your POA is assumed genuine, so long as you acknowledge the signature in the presence of a notary or other legal entity capable of proving your document’s validity.
When is my Power of Attorney effective?
Your Virginia power of attorney is effective from the time you sign until death.
However, you also have the option to modify when your agent receives power of attorney, and even detail certain circumstances, such as a date or an event, when that power might be revoked.
What will my Power of Attorney do for me?
Your POA is responsible for the decisions that determine your well-being.
Once your agent accepts your designation, your agent must:
- Behave within your outlined expectations
- Pursue your best interest
- Act in “good faith”
- Act inside the scope of power granted in your POA
Unless you otherwise provide, your POA agent must also:
- Act in your benefit
- Remain without conflicts of interest that would impair your agent’s ability to act in your best interest
- Act caringly, competently, and diligently, as prescribed by your situation
- Keep records on your behalf (i.e. receipts, transactions, etc.)
- Cooperate with your medical directive agent, in your best interest
- Attempt to preserve your estate plan (as known) if your plan is consistent with your best interest. Factors include: the value and nature of your property, your foreseeable obligations and maintenance needs, the minimization of your taxes, or to ensure your eligibility for benefits, a program, or other assistance required.
What’s in the Fine Print?
As long as your agent is pursuing your best interest, then your agent is not liable for taking action that might affect your existing estate plans.
Your agent’s purpose is to ensure your best interests first, and your property second.
All Virginia POA agents are required to disclose receipts, disbursements, and transactions on your behalf if requested by your guardian, conservator, or other fiduciary.
Disclosure is required within 30 days of request.
A 30 day extension can be requested by your agent if more time is necessary to gather the appropriate documents.
Additionally, your agent is not liable for the actions of third parties.
If your agent exercises care, competence, and diligence in selecting the third party (i.e. a physician, a therapist, etc.), then your agent is not liable for that individual’s actions.
Can I name more than one agent as my power of attorney?
To put it simply: yes.
You are able to name both coagents and successor agents under your Virginia power of attorney.
Two or more people are appropriate for designation as coagents, who work together to ensure your best overall interest.
Unless otherwise stated in your POA, your agents exercise their authorities independently.
However, they still share the same limitations and obligations of maintaining and protecting your interest.
You are also able to designate successor agents for each of your coagents.
Your successor agents take the place of your original agents in cases of resignation, death, incapacitation, failing to meet federal or state agent qualifications, and even rejection of your request to act as the agent.
Your successor agents will have the same authorities granted to your original agents.
Can I Terminate My Power of Attorney?
There are many ways your POA is validly terminated.
- Your death, at which time your POA is dissolved
- Upon incapacity, if the POA is not durable
- Your revocation of the POA
- Provision of the POA providing that it terminates
- The accomplishment of the POA’s established purpose
- Your agent’s death, incapacity, or resignation, where no alternate agent exists
However, termination of your agent’s authority happens when:
- You revoke your agent’s authority
- Your agent dies, becomes incapacitated, or resigns
- An action is filed for divorce from the agent (including legal separation)
- You or your agent file for separate maintenance from each other (generally spouses)
- The POA terminates
Your agent’s authority is exercised until fully terminated or unless otherwise provided by the POA.
The termination of your agent or POA is not effective without granting the agent due notice.
Your POA legally binds you to your successors in interest.
Remember: executing a new POA does not revoke the authoritative powers of your existing POA agents.
Your new POA is not valid unless you expressly revoke your previous POA designations.
Do I have to pay my agent?
Yes, you may have to pay your agent.
An agent exercising powers granted under a POA is entitled to a reasonable compensation that reflects their responsibilities.
Compensation ensures that your agent is acting in your best interest.
Your agent’s compensation is determined by the demands of your POA.
In some cases, a judge may assess the compensation reasonable to meet your demands in order to protect your interests.
It’s easy to forget to cover yourself when planning the care and maintenance of your estate. Remember, you are an asset, and planning for your future is important.
For this reason, it’s wise to schedule a consultation with an estate planning attorney to help protect yourself in the future.