If you cannot act on your behalf, whether it be due to a medical situation or incapacitation, you want someone you trust to make decisions in your best interest in your stead. If you have yet to designate a person to serve as your power of attorney (POA), decision-making power will likely revert to the state.
Do not let the Commonwealth make your life decisions for you. Contact our Virginia estate planning attorneys at Montagna Law at 757-622-8100 to schedule a consultation. We can help you to establish your power of attorney according to your wishes.
Most people decide to put their decisions in the hands of someone they trust who will be sure to follow their wishes. The individual you appoint and list in a legal document is called a power of attorney. This person has the legal right to act as your agent and speak on your behalf under specific circumstances, such as a traumatic brain injury, dementia, coma, or any impairment where you cannot speak for yourself. Speaking with an experienced Virginia estate planning attorney can help you understand the intricacies involved in appointing the right person as a power of attorney so you can make the best decision for you.
Under Virginia Law, there are several different types of power of attorney, and each has specific authorizations you can choose.
If you become temporarily or permanently incapacitated, a durable power of attorney empowers the individual or financial institution of your choice to step in immediately to make decisions for you. In Virginia, without a durable power of attorney, the decision of who will serve as your guardian or conservator will likely go to court. This process can be stressful, slow, and expensive.
When you draw up a durable power of attorney, it is valid as soon as you sign and date the document. It remains in effect until your death, your agent’s death or incapacitation, or the satisfaction of the power of attorney’s purpose (e.g., you complete surgery). You also have the right to initiate revocation of your durable power of attorney at any time you choose.
You might want someone to attend to your financial matters, day-to-day investments, or retirement plan. If you work with a stock broker or other financial professional, a non-durable power of attorney is helpful. A non-durable power of attorney terminates if you become incapacitated, meaning the agent can no longer make financial decisions on your behalf, thus protecting your interests while you are vulnerable.
People who only want to give specific levels of authority to another individual can choose to do this in a limited power of attorney document. You specify the exact circumstances and level of authority with which your agent can act on your behalf in the document.
A springing power of attorney is designed to only go into effect in certain situations. For example, your power of attorney can step in if you are in a severe car accident and cannot make decisions. Another practical use is if you go on a deployment and are not physically present to handle your affairs.
If you wish to have someone you trust handle almost all of your affairs when you cannot, opting to have a general power of attorney document drawn up is probably in your best interest. This power of attorney goes into effect when you sign it and stays in place until your death or until you revoke the document. The agent you choose can:
Virginia is one of 25 states that employ the Uniform Power of Attorney Act. This act states that if the type of power of attorney is not specified, it defaults to a durable power of attorney. Your document will stay in effect if you either temporarily or permanently experience incapacity and cannot act to make decisions. The benefit is that a durable power of attorney will remain in effect even if you become incapacitated. You can rest assured the person you trust will be making decisions, not a guardian or conservator selected by the court.
In July 2010, the Commonwealth of Virginia passed a ruling that indicates any power of attorney signed after that date is durable by default. While you technically do not need your POA notarized, it is highly recommended you do so as it provides the presumption your document is genuine. In the event a power of attorney was established before July 1, 2010, it is still valid if its execution was compliant under VA law at the time the document was written.
Any power of attorney you sign goes into effect as soon as you date and sign your document. You could date it for the current day or a future date you predetermine and state on your power of attorney for the individual’s authority to begin.
A power of attorney can end when certain conditions arise. A power of attorney automatically ends after the principal’s death. A power of attorney also ends if you revoke the document, if your agent becomes unavailable and you have not named a successor agent, or if it is a temporary arrangement that reaches the end of its terms.
In some cases, a court might invalidate your power of attorney. This is rare, but if the court determines that you had limited mental capacity at signing or were under undue influence, a court may overturn your power of attorney. The court may also overturn your power of attorney if they deem it fraudulent. Additionally, under Commonwealth law, if you select your spouse as your power of attorney and the two of you divorce, your spouse’s power of attorney authority ends, but the document itself does not. If you have named a successor agent or co-agent to your spouse, responsibility will pass to them at the time of your divorce.
When you select a person to serve as a power of attorney, they have specific authority but not necessarily in all areas. Most powers of attorney handle affairs related to financial or medical decisions.
The person you select as a power of attorney is granted an agent’s authority to access your bank accounts to pay your bills, file your taxes, and make investment decisions on your behalf. They can also collect debts, manage real estate transactions, and apply for public benefits, such as Social Security, VA benefits, or Medicaid/Medicare.
Your agent has the authority to make health care decisions, including hospitalizations, surgery, mental health, home health care, and which providers you use for your care. They can also make important decisions regarding any assisted living or other specialized housing you need. Your medical power of attorney can select the food you eat and determine who bathes you if you cannot perform these daily activities.
There are limits to what powers of attorney can do. A power of attorney cannot initiate changes in your estate planning documents, make decisions after your death, transfer power of attorney responsibilities to someone else, or act in ways that benefit themselves. If you name a co-agent or a successor, that person can take over if the agent no longer wants to serve as the primary.
It is difficult for you or your family to think about scenarios in which severe injury or illness prevents you from managing your personal affairs. When you establish a power of attorney in Virginia, you empower yourself to choose the person you want to speak on your behalf, make important decisions for you, and oversee that your wishes are honored.
Our caring and compassionate attorneys at Montagna Law proudly serve the entire Hampton Roads area, including Virginia Beach, Chesapeake, Portsmouth, Norfolk, and Suffolk. Our lawyers can assist with complexities associated with Virginia power of attorney forms, including advanced medical directives, also known as living wills. Our experienced lawyers can offer sound legal advice and help you organize your affairs.