Virginia Power of Attorney Laws

If you want someone to be able to deposit your checks at your bank, file your taxes, or even sell or mortgage your home, you can create a handy document called a power of attorney. A POA is a simple document that grants specific powers to someone you trust—called an "agent" (and sometimes an "attorney-in-fact") in Virginia—to handle certain matters for you.

• What Types of Powers of Attorney Are Available in Virginia?
• What Are the Legal Requirements of a Financial POA in Virginia?
• Steps for Making a Financial Power of Attorney in Virginia
• Who Can Be Named an Agent in Virginia?
• When Does My Durable Financial POA Take Effect?
• When Does My Financial Power of Attorney End?

What Types of Powers of Attorney Are Available in Virginia?

You can make several different types of POAs in Virginia. In particular, many estate plans include two POAs that are effective even if you become incapacitated:

• a financial POA, which allows someone to handle your financial or business matters, and
• a health care POA, which allows someone to make medical decisions on your behalf. (In Virginia, this POA is combined with a living will, which lays out your wishes for medical treatment, and the combined document is called an "advance medical directive.")

In most estate plans, these POAs are what are known as "durable" POAs, which means that they retain their effectiveness even after you're incapacitated. It's a good idea for most people to create these two documents, as they help plan for the unexpected.

To learn about other types of POAs, including non-durable (limited) and springing POAs, see What Is a Power of Attorney. Below, learn how to create a durable financial POA that is valid in Virginia.

What Are the Legal Requirements of a Financial POA in Virginia?

For your POA to be valid in Virginia, it must meet certain requirements.

Mental Capacity for Creating a POA

The person making a power of attorney must have the mental capacity to do so. While the exact contours of the mental capacity requirement are open to interpretation by Virginia courts, generally, people creating POAs should be able to understand the nature and consequences of their actions. (Martone v. Martone, 43 Va. Cir. 155 (Norfolk 1997).) If you're helping someone make a POA and you're unsure whether they have the required mental capacity, consult an estate planning attorney.

Notarization Requirements

While Virginia does not technically require you to get your POA notarized, notarization is very strongly recommended. Under Virginia law, when you sign your POA in the presence of a notary public, your signature is presumed to be genuine—meaning your POA is more ironclad. In addition, many financial institutions will require a POA to be notarized (even if state law doesn't require it) before they accept it.

Steps for Making a Financial Power of Attorney in Virginia

1. Create the POA Using Software or an Attorney

Some private companies offer forms or templates with blanks that you can fill out to create your POA. However, because these forms are often full of legalese, it's not always apparent how to fill them out. For a more user-friendly experience, try WillMaker, which guides you through a series of questions to arrive at a POA (and estate plan, if you wish) that meets your specific aims and is valid in your state. You can also hire a Virginia lawyer to create a POA for you. Many lawyers will include durable POAs as part of a more comprehensive estate plan alongside a will or living trust.

Whatever method you choose, the process of making the POA will include either granting your agent comprehensive powers or selecting, from a list, the specific powers you want your agent to have. For example, you might choose to grant your agent the power to:

• engage in real estate transactions
• engage in banking and financial transactions
• engage in retirement plan transactions
• engage in stock, bond, and other securities transactions
• operate a business or entity
• receive government benefits
• pursue tax matters
• provide for personal and family maintenance.

In Virginia, your power of attorney is automatically durable (meaning that it remains effective after your incapacitation) unless the document explicitly states otherwise. (Va. Code § 64.2-1602.)

2. Sign the POA in the Presence of a Notary Public

As mentioned above, you should have the POA notarized. This means signing it before a notary public, who will verify your identity and sign and stamp the document.

3. Store the Original POA in a Safe Place

Once you have completed the POA, store the original in a safe place that your loved ones can easily access, and let them know where to find it. (It won't do much good locked away in a safe that no one can get into.) If you become incapacitated, your agent might need the original POA to act on your behalf.

4. Give a Copy to Your Agent

You should also give a copy of the power of attorney to your agent so that your agent is familiar with the contents of the document.

5. File a Copy With the Land Records Office

If you gave your agent the power to conduct real estate transactions, you should also file a copy of your POA in the land records office (a division of the circuit court clerk's office in Virginia) in the county where you own real estate. This will allow the circuit court clerk's office to recognize your agent's authority if your agent ever needs to sell, mortgage, or transfer real estate for you.

6. Consider Giving a Copy to Financial Institutions

You can also give copies of your durable financial POA to banks or other institutions that your agent might need to deal with in the future. This step might eliminate some hassles for your agent if your agent ever needs to use the POA. Banks can sometimes be finicky about accepting POAs; see Can Banks Refuse a Power of Attorney? for more details.

Who Can Be Named an Agent in Virginia?

Legally speaking, you can name any competent adult to serve as your agent. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing agents, see What Is a Power of Attorney.

Virginia allows you to appoint co-agents who are authorized to act at the same time, but it's usually advisable to stick to just one agent to minimize potential conflicts. However, naming a "successor" agent—an alternate who will become your agent if your first choice is unavailable for any reason—is always a good idea, as it creates a backup plan.

When Does My Durable Financial POA Take Effect?

Your POA is effective immediately unless it explicitly states that it takes effect at a future date or upon a future event.

It's possible to create a condition that must be satisfied before the POA becomes effective—such as a doctor declaring that you are incapacitated—but there are many reasons why this type of "springing" power of attorney is not usually advised.

When Does My Financial Power of Attorney End?

Any power of attorney automatically ends at your death. A durable POA also ends if:

• You revoke it. As long as you are mentally competent, you can revoke your document at any time.
• No agent is available. To reduce the likelihood of this happening, you can name a successor (alternate) agent in your document.
• A court invalidates your document. It's rare, but a court may declare your document invalid if it concludes that you were not mentally competent when you signed it, or that you were the victim of fraud or undue influence.

Additionally, in Virginia, if your spouse is named as your agent in your POA, that designation automatically ends if you or your spouse files for divorce. To be clear, your ex-spouse's authority to act as your agent ends, but your POA is still intact. So if you named a successor agent, that person would become your agent instead.

For more on Virginia estate planning issues, see our section on Virginia Estate Planning.