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.
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:
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.
For your POA to be valid in Virginia, it must meet certain requirements.
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).) So if you're helping someone make a POA, you should be sure that, at a minimum, they understand what it is they're doing when they sign the document, and that they're giving away powers to someone else to act on their behalf.
To make a POA in Virginia, you must also sign the document in the presence of a notary public.
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, you can try a software program like WillMaker, which guides you through a series of questions to arrive at a POA 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:
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.)
As mentioned above, you can't simply sign the document and call it a day. In Virginia, you must have the POA notarized for it to be effective.
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 will need the original POA to act on your behalf.
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.
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.
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. However, it's not necessary.
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.
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.
Any power of attorney automatically ends at your death. A durable POA also ends if:
For more on Virginia estate planning issues, see our section on Virginia Estate Planning.