You might be in perfect health today, but the scary aspect of living is that anything can happen at any time, unexpectedly and without warning. If suddenly you cannot make decisions about important aspects of your life, you do not want those decisions to be in the hands of someone you do not trust or someone who cares for you but cannot make an informed decision.
Creating a power of attorney (POA) allows you to specify who you want to make decisions on your behalf when you can no longer do so. Do you have someone you trust, and are you ready to create this key part of your estate planning process? Contact the Virginia Beach power of attorney lawyers at Montagna Law to get started on your power of attorney today.
A power of attorney, or POA, is someone you appoint who can make decisions on your behalf. This person is also known as an attorney-in-fact or an agent. The specific decisions they can make depend mainly on the type of power of attorney you create. Some allow for financial decisions, while some allow for medical decisions. Some are limited, while others are durable. The underlying feature of any power of attorney is that it is a legal document permitting a trusted person to act on your behalf in accordance with the rights, obligations, and limitations outlined in the document.
Virginia law allows for many different types of power of attorney. Each carries its own authority and limits regarding what it allows and when it goes into effect. Some of the more common powers of attorney include durable, limited, springing, general, and medical.
Durable powers of attorney remain in effect even if you become mentally incapacitated. In Virginia, a power of attorney is durable unless specified otherwise. Your attorney can help you determine if a durable power of attorney suits your needs and draft your documents accordingly.
A limited power of attorney outlines particular areas where the agent has the authority to act on your behalf. These are most often created when you have specific things you want to protect and have someone you trust to protect those areas of your life. Under Virginia law, a limited power of attorney can terminate when the principal (you) becomes incapacitated.
A springing power of attorney is also called a contingent power of attorney. This type of power of attorney limits and defines precisely when a power of attorney becomes active. For example, you could set a power of attorney that goes into effect on a specific date in the future, when a specific future event happens, or when a condition occurs in the future. A springing power of attorney can be helpful if you become mentally incapacitated.
A general power of attorney grants the agent broad power to act in almost any way on behalf of the principal. With these types of powers of attorney, the agent’s authority has very few limits. They may pay bills, engage in real estate transactions, and even exercise control over real property that you own. For this reason, you should trust someone implicitly before granting them a general power of attorney.
A general power of attorney does not typically grant the authority to make medical decisions (though it may, depending on how it is worded). The general power of attorney also does not allow the agent to create a will on behalf of the principal.
Many people create living wills or advance medical directives as part of their estate planning process. A living will makes a person’s wishes clear regarding how to handle their medical and health care decisions when in a state of incapacity. An advance medical directive, also known as a medical power of attorney, takes this one step further. A medical power of attorney appoints a family member or other trusted loved one who acts on behalf of the principal to make health care decisions that the living will does not otherwise cover.
Virginia is one of 25 states that utilize the Uniform Power of Attorney Act. This act states that if a power of attorney is not specified, it defaults to a durable power of attorney. This means that you should always be very careful to be specific when you create a power of attorney, particularly if you do not want it to be durable.
If you do not specify limits to when your power of attorney goes into effect and terminates, it is automatically assumed to be durable. This can leave decision-making in the hands of others even after you no longer want them to have such powers. A Virginia Beach power of attorney lawyer can help you so that the powers you grant your attorney-in-fact are exercised and limited precisely as you wish.
The basic steps to establishing a Virginia power of attorney are to draft the power of attorney, have it notarized, and store it somewhere safe. The process seems deceptively simple, but it is still important to work with a Virginia Beach attorney to get the language right and properly represent your intentions.
You can use templates or power of attorney forms online to draft your initial power of attorney. However, online forms can expose you to legal terminology you may not understand, which makes it easy to make a mistake. Alternatively, a Virginia Beach lawyer can create your power of attorney to protect your interests exactly as you desire.
Virginia law does not require you to sign your power of attorney in the presence of a notary public. However, doing so is strongly recommended. When you have your power of attorney notarized, the signature is presumed genuine, strengthening the claims in the power of attorney and making it harder to challenge in court. In addition, many financial institutions may refuse to recognize an un-notarized power of attorney, even though state law does not require it.
Store the original power of attorney in a safe place to which you and your loved ones have easy access. Locking it in a safe, for example, only helps if those needing access have the combination or key. Your agent may need to locate the original document to exercise their powers. You should also make sure that your agent has a copy of the power of attorney so they are familiar with the powers they can exercise.
The specific responsibilities of a power of attorney are tied to which type of power of attorney you have. Their general responsibilities include making decisions on your behalf should you lose your mental capacity, handling all of your financial and legal matters, and making medical decisions on your behalf (if you have granted medical power).
An agent cannot change your will, break their fiduciary duty to act in your best interests, make decisions for you after you die, change the terms of the power of attorney, or transfer the power of attorney to someone else. They can decline their appointment but cannot choose who takes over their duties.
You or a court-appointed agent can revoke your power of attorney. One way, and possibly the simplest means of revoking a power of attorney in Virginia Beach, is destroying all copies of the existing document.
Alternatively, you can sign a Notice of Revocation. Signing the notice is preferable as it establishes firm proof of your intent to revoke. Like with the original power of attorney, signing the notice before a notary public is a good idea. It is also a good idea to file the revocation with the local recorder of deeds office, which makes it a matter of public record.
After signing and recording the notice, you must deliver a copy of the notice to notify the former attorney-in-fact and any institutions that might deal with them. If you do not give this notification, the agent may still engage with agencies. If they do so in good faith, they have legal protection.
A lawyer is not strictly necessary to file a Virginia power of attorney. Still, it is always a good idea to work with a qualified and experienced attorney any time you need to draft a legal document. Attorneys can help you avoid critical mistakes such as not notifying the right people or creating wording that is too imprecise to represent your interests. They can help you remain in compliance with Virginia law while still tailoring the document to your wishes and needs.
At the Montagna Law law firm, our lawyers have decades of combined experience serving people in Virginia Beach and the wider Hampton Roads area. We offer comprehensive legal services, with practice areas covering almost every aspect of estate planning and family law.
No matter your legal issue, we are ready to provide legal advice to help you move forward. We treat everyone who comes through our door like a member of our own family. We are prepared to represent your interests from probate to powers of attorney, living wills, and more. Contact us today at 757-622-8100 or use our online contact form to speak with a member of our legal team about your case.
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