10 Steps You Can Take Today to Protect Your Child’s Inheritance
This guide will help you protect your child’s inheritance, so you can prevent future unintentional missteps.
Filling out your estate planning documents and meeting all necessary requirements can be overwhelming. Filling out essential legal documents for your estate planning process can be complex and time-consuming, especially when you account for the research needed to understand the legal documents that you will need.
A Virginia trusts and estates lawyer can work with you to understand this process and the role a power of attorney can play in your estate planning. From health care decisions to the disposition of real estate and other financial matters, a power of attorney can be crucial to your final wishes or even vital to ensuring your medical decisions are respected and followed while you are alive but incapacitated. Ready to get started on important legal documents for your estate plan? Contact the knowledgeable Virginia estate planning attorneys at Melone Hatley, P.C.
What is a Power of Attorney?
A power of attorney (POA) is a document that allows someone to acton your behalf. The individual who grants the power of attorney is the principal, and the person given the authority to act on behalf of the principal is the attorney-in-fact or agent.
The principal must be aware of the content and nature of the document when they sign the power of attorney in order for the document to be valid.
There are several different types of powers of attorney, which include: durable power of attorney, springing power of attorney, general power of attorney, and limited power of attorney.
Types of Power of Attorney
Durable Power of Attorney
This document remains in effect if the principal later becomes mentally incapacitated. State law requires written acknowledgment in the document that it is intended to remain in effect after an incapacitation occurs. Without that specification, a power of attorney would terminate.
Springing Power of Attorney
This document will not become effective until a specified future time, such as when the principal cannot make their own decisions. Other types of powers of attorney will become effective immediately after they are signed.
General Power of Attorney
This document allows the agent to act on behalf of the principal in almost any capacity. A separate advance medical directive or healthcare power of attorney may be used for medical-related decisions. The general power of attorney also does not allow the agent to create a will for the principal.
Limited Power of Attorney
This document, also called a special power of attorney, specifies the actions and decisions a power of attorney can make on behalf of the principal.
Virginia Virginia Powers of Attorney
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Uniform Power of Attorney Act in Virginia
Virginia is one of several states that implemented the Uniform Power of Attorney Act. This act states that powers of attorney are assumed to be durable unless stated otherwise. Unless you add specific wording to your power of attorney documents, if you become incapacitated, the power of attorney is still effective.
When to Use a Military Power of Attorney
Virginia is home to many military families. Understanding how being in the military impacts certain life decisions you might make is essential. Military personnel, especially when deployed, may have limited access to the technology and information they need to communicate and make transfers of assets. If this is the case, they will likely want to utilize the benefits of a military power of attorney.
What Makes a Power of Attorney Valid in Virginia?
A power of attorney grants the agent, the person who holds the power of attorney, broad power to act on your behalf. It is crucial to understand how the agent’s authority becomes valid. Once a power of attorney is valid, it is only made invalid through the death of the principal, the agent dying, or the POA being revoked. It is important to note that for a power of attorney to become a legal document, a notary public must sign it.
Do I Have to File Virginia Power of Attorney Forms in a Court?
No, you do not have to file your power of attorney forms with a circuit court in Virginia. The only reason your power of attorney might have to go before a judge is if it is for a conservatorship or guardianship and was not a true power of attorney.
What Are the Benefits of Having a Power of Attorney?
One of the largest benefits of having a power of attorney is that there is no uncertainty about the next steps. If you become incapacitated, your medical power of attorney appoints a conservator to make important healthcare decisions for you. A financial power of attorney gives a fiduciary, often a trusted family member or other trusted party, the ability to oversee your finances, make sure your bills are paid, and handle your money and real estate transactions. A tax power of attorney appoints someone to oversee your tax-based affairs.
The options go on and on, and a skilled Virginia estate planning attorney can help you create the necessary documents to protect your finances and estate so that your final wishes are respected.
Limitations of a Power of Attorney in Virginia
There are limits to a power of attorney in Virginia under the Uniform Power of Attorney Act. One of these limits is that the agent or co-agents cannot change the principal’s estate planning documents, such as a will or trust. Those documents, once created and filed, reside outside of the powers of any power of attorney. This includes advance medical directives or a living will, which cannot be overridden by a medical power of attorney.
Who Can Override a Power of Attorney?
The principal can override their own power of attorney if they are of sound mind. In some instances, it may be possible for the family or friends of the principal to override the POA if they are concerned that the agent is not acting in the principal’s best interests, is abusing their fiduciary or healthcare responsibilities, or is otherwise acting contrary to the intent of the power of attorney. If, for example, an agent dips into the principal’s retirement plan to purchase a motor vehicle for themselves, this is a clear misuse of the power of attorney.
In addition to overriding the existing POA, the loved ones of the principal may seek to replace an agent who cannot carry out their duties properly with a successor agent. Normally, the principal would do this, but if the principal is incapacitated, the family members must follow a formal procedure to replace the existing agent to protect the principal’s interests and their estate.
Three circumstances permit a power of attorney to be revoked under Virginia law:
- The principal, if they are of sound mind, may create and sign a revocation form that revokes the existing power of attorney. This revocation must be in writing and clearly express the intent to revoke the POA.
- A family member or loved one (an “interested party”) may petition the courts to terminate the existing power of attorney if the principal is incapacitated.
- A court-appointed guardian can petition to terminate the authority of the agent.
In the second and third cases, the courts will determine if the power of attorney will be terminated based on evidence that the principal is being abused by their agents or that the principal lacks mental capacity.
Need Assistance Setting Up Your Power of Attorney?
Dealing with powers of attorney can be a tricky, complex, and difficult process. Melone Hatley’s estate planning law firm can provide legal advice and guidance step by step to help you get everything in proper order. If you need assistance with a Virginia power of attorney or any other estate planning documents, we are ready to help.