This article is for general informational purposes only and is not legal advice. The right estate planning documents depend on your circumstances and your goals.
Most people think about estate planning in terms of what happens after they die. A power of attorney deals with a different and often more pressing question: who can handle your finances and legal affairs if you are alive but unable to act for yourself? An accident, a sudden illness or a gradual decline in health can leave bills unpaid, accounts frozen and family members unsure of what they are allowed to do.
A durable power of attorney gives a trusted person the legal authority to step in. This guide explains what the document covers under Virginia law, how it is signed, what duties the agent takes on and what can happen if a family is left without one.
To talk about a power of attorney or a complete estate plan, call The Alvarez Law Firm at (703) 888-0959.
Key Points
- Virginia's Uniform Power of Attorney Act, Va. Code § 64.2-1600 and the sections that follow, governs financial powers of attorney.
- Under Va. Code § 64.2-1602, a power of attorney signed under the Act is durable unless it expressly says otherwise, meaning it keeps working if you become incapacitated.
- Certain significant powers, such as making gifts or changing beneficiary designations, must be expressly granted in the document under Va. Code § 64.2-1622.
- An agent has legal duties, including acting in good faith and within the authority granted, under Va. Code § 64.2-1612.
- Health care decisions are usually handled through a separate document, an advance medical directive.
What a Durable Power of Attorney Does
A power of attorney is a written document in which one person, the principal, gives another person, the agent, authority to act on the principal's behalf. The agent is sometimes called an attorney-in-fact, although the agent does not need to be a lawyer.
The word "durable" is what makes this document so useful for planning. A non-durable power of attorney ends if the principal becomes incapacitated, which is often exactly when it is needed most. Under Virginia's Uniform Power of Attorney Act, a power of attorney is durable unless it expressly provides that it is terminated by the principal's incapacity. In other words, the authority continues when you can no longer manage your own affairs.
Depending on how it is drafted, a durable power of attorney can allow an agent to handle tasks such as:
- Paying bills and managing bank accounts
- Filing tax returns and dealing with tax authorities
- Managing real estate and other property
- Handling insurance and retirement benefit matters
- Dealing with government benefit programs
- Managing business interests
The document can be broad or narrow. Some people grant general authority over most financial matters, while others limit the agent to specific tasks, such as selling a single property.
When a Power of Attorney Takes Effect
Timing is another choice the principal makes when the document is drafted. Under Va. Code § 64.2-1609, a power of attorney is effective when it is signed unless the document provides that it becomes effective at a future date or upon a future event, such as the principal's incapacity. A document that only takes effect later is often called a springing power of attorney.
A springing document can feel reassuring because the agent has no authority while the principal is well. In practice, it can create delays. Before acting, the agent may need to prove that the triggering event has happened, often through written statements from physicians. An immediately effective document avoids that step, which is why many people choose it and simply rely on the trust they place in their agent. The right approach depends on your circumstances and how comfortable you are with the person you name.
Powers That Must Be Spelled Out
Some powers carry a higher risk of abuse because they can change who ultimately receives the principal's property. Va. Code § 64.2-1622 provides that an agent can exercise these powers only if the power of attorney expressly grants them. Examples include the authority to create, amend or revoke a trust, make gifts, create or change rights of survivorship, and create or change beneficiary designations.
This is one of the most important reasons to have a power of attorney drafted with care. A generic form may not include these powers, which can leave an agent unable to carry out estate planning steps the principal would have wanted. On the other hand, granting these powers without limits to the wrong person can put assets at risk. The right balance depends on your family and your goals.
How a Power of Attorney Is Signed in Virginia
Under Va. Code § 64.2-1603, a power of attorney must be signed by the principal, or by another person in the principal's conscious presence at the principal's direction. A signature acknowledged before a notary public is presumed to be genuine.
Notarization matters in practice. Banks, title companies and other institutions are far more likely to accept a notarized document without delay. If the agent may ever need to sell or refinance real estate, a notarized power of attorney is especially important.
The principal must also have the mental capacity to sign. That is why it is best to put a power of attorney in place while you are healthy. Once a person has lost capacity, it is generally too late to sign one.
What Your Agent Is Required to Do
Accepting the role of agent comes with legal responsibilities. Under Va. Code § 64.2-1612, an agent who has accepted appointment must act in accordance with the principal's reasonable expectations to the extent the agent knows them, and otherwise in the principal's best interest. The agent must act in good faith and only within the scope of authority granted in the document.
Unless the power of attorney provides otherwise, the statute also directs the agent to act loyally for the principal's benefit, avoid conflicts of interest that impair the ability to act impartially, keep records of receipts, disbursements and transactions, and attempt to preserve the principal's estate plan to the extent the agent knows it.
Choosing an agent is therefore one of the most important decisions in the process. Many people name a spouse, an adult child or another trusted relative, along with a successor agent in case the first choice is unable or unwilling to serve.
Using a Power of Attorney With Banks and Other Institutions
A power of attorney only helps if the people the agent deals with will honor it. Virginia's Uniform Power of Attorney Act includes provisions that protect a person who accepts an acknowledged power of attorney in good faith, which encourages banks and other institutions to rely on properly signed documents.
Even so, families sometimes run into practical hurdles. An institution may ask the agent to sign a certification confirming facts about the document or ask for additional information before accepting it. Having a clearly drafted, notarized document and keeping copies available can make these interactions smoother. It also helps to let your agent know where the original is kept so it can be located quickly when it is needed.
Power of Attorney and Health Care Decisions
A financial power of attorney generally covers property and financial matters. Medical decisions are usually addressed through an advance medical directive under Virginia's Health Care Decisions Act, Va. Code § 54.1-2981 and the sections that follow. An advance directive can name a health care agent and record your wishes about treatment.
Many people sign both documents at the same time as part of a broader plan. Our article on the benefits of an estate plan explains how these documents work together with a will and other planning tools.
What Happens Without a Power of Attorney
If a person becomes incapacitated without a valid power of attorney, family members do not automatically gain authority to manage that person's finances. Being a spouse or adult child does not, by itself, give someone the right to access individual accounts or sign on another person's behalf.
In that situation, a family member may need to petition the circuit court to appoint a guardian or conservator under Va. Code § 64.2-2000 and the sections that follow. That process involves court filings, a hearing and ongoing court oversight. A durable power of attorney signed in advance can often avoid the need for it and lets you choose who will act for you instead of leaving the decision to a court.
A power of attorney also has limits on timing. It ends at the principal's death. After that point, the principal's will and the estate administration process take over. If you have not yet made a will, our guide on what happens if you die without a will explains why the two documents go hand in hand.
When to Review or Update Your Power of Attorney
A power of attorney is not a document to sign once and forget. Life changes can affect whether the agent you named is still the right choice. Marriage, divorce, the death or illness of an agent, a move to another state or a significant change in your finances are all good reasons to review it.
Divorce deserves special attention. Under Va. Code § 64.2-1610, unless the power of attorney provides otherwise, an agent's authority ends when an action is filed for the divorce or annulment of the agent's marriage to the principal, or for their legal separation. Even so, reviewing your documents after a separation is the clearest way to make sure they reflect your current wishes.
Many people review their estate planning documents every few years or after any major life event. A short review can confirm that your agent and successor agent are still willing and able to serve and that the powers granted still fit your goals.
Frequently Asked Questions
Is a power of attorney in Virginia durable automatically?
Yes. Under Va. Code § 64.2-1602, a power of attorney created under the Uniform Power of Attorney Act is durable unless it expressly provides that it ends when the principal becomes incapacitated.
Does a Virginia power of attorney need to be notarized?
The statute requires the principal's signature. Notarization is not the only way to make the document valid, but a notarized signature is presumed genuine under Va. Code § 64.2-1603, and many banks and title companies expect it.
Can my agent make gifts or change my beneficiaries?
Only if the document expressly grants that authority. Va. Code § 64.2-1622 requires an express grant for powers such as making gifts, changing beneficiary designations and creating or changing rights of survivorship.
Does a power of attorney cover medical decisions?
A financial power of attorney generally does not. Health care decisions are usually handled through an advance medical directive, which can name a health care agent and record your treatment wishes.
Can I revoke a power of attorney?
Yes. A principal with capacity can generally revoke a power of attorney. It is wise to put the revocation in writing and notify the agent and any institutions that relied on the document.
When should I sign a durable power of attorney?
The best time is while you are healthy and have full capacity. Waiting until a health crisis can make it too late. Call (703) 888-0959 to discuss your options with our team.
Ready to Get Started with The Alvarez Law Firm?
Call (703) 888-0959 to speak with our team directly. Our bilingual attorneys help Alexandria families prepare durable powers of attorney, wills and complete estate plans that protect what matters most. Learn more about our estate planning services or reach out today. Call The Alvarez Law Firm at (703) 888-0959 or visit us at 50 South Pickett St #110, Alexandria, VA 22304.