A power of attorney (often referred to as a POA) is an essential part of an estate plan. It provides a person of your choosing with the ability to make critical decision on your behalf should you become temporarily or permanently incapacitated. They come in various forms, each tailored to different needs and detail what authority is granted. As a result, a power of attorney ensures your wishes will be carried out if you cannot express them.
Consult a trusts and estates attorney about establishing a power of attorney. A Virginia Beach power of attorney lawyer can review your needs and help you develop a POA that will help ensure decisions can be made when you are unable to make them.
Essential Facts About Powers of Attorney
A power of attorney is a legal document that authorizes one person, known as the agent or attorney-in-fact, to act on behalf of another person, known as the principal, in making decisions and managing affairs. This authority can cover a range of actions, including financial transactions, legal matters, and health care decisions, depending on the type of power of attorney established. It is important to note that the principal does not give up any rights when they give an agent their power of attorney.
A power of attorney may be general, providing for the broad management of the principal’s affairs. In contrast, a Special or Limited Power of Attorney narrows the agent’s authority to specific duties or events, such as selling a property or managing a particular bank account.
A Durable Power of Attorney is another critical form, maintaining its effectiveness even if the principal becomes mentally incapacitated. This durability is especially important for long-term planning, as it ensures that the agent can continue to act on the principal’s behalf without the need for a guardianship or conservatorship proceeding in the event of the principal’s incapacity. According to Virginia Code § 64.2-1602, all powers of attorney are durable unless they specifically state otherwise. An attorney in Virginia Beach can determine the right power of attorney for a person’s needs.
Selection of Agents
The agent chosen should be someone the principal trusts implicitly, as they may have the power to make life-altering decisions on the principal’s behalf, ranging from financial management to life-sustaining medical interventions. The agent may be a spouse, family member, trusted friend, associate, or professional.
Spouses are commonly selected as an agent due to the trust inherent in the marital relationship and the likelihood that they are well-acquainted with each other’s wishes and affairs. Having your spouse as your agent can ensure that someone who intimately understands your preferences and interests is making decisions on your behalf. In the event of a divorce, the authority of a spouse will end. As a result, naming a successor agent ensures the power of attorney remains effective despite the disqualification of the original agent. A lawyer in Virginia Beach can help a person choose and document an agent for a pawer of attorney.
Mechanics of Making a POA
There are specific legal requirements and formalities that must be observed when creating a power of attorney to ensure that it is valid and enforceable. Here are the key requirements:
Capacity
The principal must be of sound mind, meaning they understand the nature and consequences of the document they are signing and are doing so voluntarily without coercion or undue influence.
Writing
The power of attorney must be in writing. It should clearly state the principal’s name, the agent’s name, and the powers granted to the agent.
Signature
The principal must sign the power of attorney. If the principal is unable to sign, another individual can sign on the principal’s behalf in their conscious presence and at their direction.
Witnesses
While Virginia law does not require a power of attorney be witnessed, however, such is a requirement in other states. Complications sometimes arise as a result and best practice is to have the power of attorney signed in the presence of two disinterested individuals. Some powers of attorney, especially those related to real estate, may require two witnesses.
Notarization
Although notarization is not required, a signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments. Additionally, the acknowledgement before a notary will allow the power of attorney to be recorded in the circuit court as necessary. As a result, it is best practice to have the power of attorney notarized.
Specificity
While general powers of attorney can grant broad powers, Virginia law requires that certain powers be expressly stated in the document in order to be granted to the agent. These include the ability to make gifts, change beneficiary designations, delegate authority granted under the power of attorney, create or change rights of survivorship, and create or change a beneficiary account.
Virginia law includes provisions that require third parties to accept a duly executed power of attorney unless certain exceptions apply, such as actual knowledge of the power of attorney being revoked.
It’s advisable to consult with an attorney when drafting a power of attorney to ensure that it complies with all relevant laws and accurately reflects the principal’s wishes. A power of attorney lawyer in Virginia Beach can also help in understanding the implications of granting certain powers and the potential need for a durable power of attorney or special provisions.
Different Types of POA for Different Purposes
A financial power of attorney provides authority to manage the financial affairs of the principal. This can include a wide range of activities such as paying bills, managing bank accounts, investing money, handling transactions involving securities, buying or selling property, filing taxes, and managing retirement benefits. The extent of these powers can be tailored to the principal’s specific instructions and can be as broad or as limited as desired. A financial power of attorney can be crafted to take effect immediately or upon the occurrence of a future event, often the principal’s incapacity.
A healthcare power of attorney, which is a component of an advance medical directive (AMD) in Virginia, empowers an appointed agent to make medical decisions on behalf of the principal if the principal becomes incapacitated and is unable to express their wishes. This document specifies the type of medical care the principal prefers, including decisions about medical treatments, surgical procedures, life support, and end-of-life care. The agent’s authority can encompass the ability to choose or change healthcare providers and facilities, access the principal’s medical records, and discuss the principal’s condition and treatment options with healthcare professionals. It is a fundamental component of advance healthcare planning, ensuring that the principal’s healthcare preferences are respected and providing clear guidance to healthcare providers and loved ones during difficult and often emotional situations. A lawyer in Virginia Beach can draft several powers of attorney to fit all necessary situations.
The Absence of a Power of Attorney
If you do not have a power of attorney in place and become incapacitated or unable to manage your own affairs, the consequences can be complex and distressing for you and your family. Without this legal document, no individual automatically has the authority to handle your financial matters or make healthcare decisions on your behalf. As a result, your family members may face significant challenges and delays in accessing your bank accounts to pay bills, managing your investments, or making important healthcare decisions. This lack of legal authority can lead to financial difficulties, such as missed payments or unmanaged assets, and can create confusion and conflict regarding your healthcare choices.
In such a scenario, a family member or interested party would typically need to petition the court to appoint a guardian or conservator. This legal process can be lengthy, costly, and public, often involving court hearings, ongoing court supervision, and the filing of detailed reports and accountings. The court-appointed guardian or conservator may not necessarily be someone you would have chosen yourself. Furthermore, this process can add stress to your loved ones during an already difficult time, as they navigate legal proceedings while also dealing with concerns about your well-being. Establishing a power of attorney with a Virginis Beach lawyer when you are able to make informed decisions about your affairs can prevent these complications and ensure that your affairs are managed according to your wishes by a trusted individual of your choice.
Seek Advice from a Virginia Beach Power of Attorney Lawyer
Powers of attorney ensure decisions can be made if you become temporarily or permanently incapacitated. Designating an agent and giving them your power of attorney can spare your loved ones from significant inconvenience and stress.
A Virginia Beach power of attorney lawyer can draft the necessary documents to provide peace of mind. Call today to speak with a legal professional at Parks Zeigler, PLLC.
