Understanding the various legal forms when it comes to determining power of attorney can often be an overwhelming and complicated process. However, it doesn’t have to be with the right information and counsel. Elder law attorney Paul Izzo has provided an overview of power of attorney, what it is, who should have it, and why you need more than just a general power of attorney.
What is a power of attorney?
A power of attorney is a legal document in which you appoint a trusted individual (known as your agent) to handle your personal financial and business affairs. Although typically effective immediately, the power of attorney can be drafted so it would not become effective until you become incapacitated (known as a “springing power”). I counsel against using springing powers, since third parties may require proof of your incapacity before being willing to recognize your agent’s authority to act on your behalf under the document.
A power of attorney can be broad and general, covering as many different circumstances and types of assets as possible, or it can be specific, such as a limited power of attorney just to sell your real estate. A power of attorney can also be used to appoint someone to make health care decisions for you (see below). Although Virginia law does not require that your signature to a financial power of attorney be notarized, the document may not be used to transfer title to your real property unless it is notarized. All powers of attorney, including general power of attorney, are now considered “durable” (i.e., they survive your incapacity) in Virginia, unless they specifically state otherwise. When signing a health care power of attorney or advance directive discussed below, under Virginia law your signature must be witnessed by two subscribing adults, but need not be notarized.
Who should have a power of attorney?
Any competent individual above eighteen years of age should have a power of attorney. You never know when incapacity or disability may strike and it may become necessary for someone to step in and manage your personal and financial affairs. If you become incapacitated and do not have a power of attorney it will probably become necessary for someone to go to court to become your guardian and conservator, all at considerable trouble and expense.
What is the difference between a General Power of Attorney, Medical Power of Attorney and a Financial Power of Attorney?
A general power of attorney is usually very broad, covering as many different circumstances and types of assets as possible. A Medical Power of Attorney is a document in which you appoint someone to make all kinds of health care decisions for you, whenever you are deemed to be incapable of making your own decisions. Virginia has a suggested form of a Medical Power of Attorney (known as an “Advance Directive”) that also contains instructions about your wishes for end of life care. However, an Advance Directive should not be confused with a Do Not Resuscitate Order. Only you and your physician together can execute a Do Not Resuscitate Order, and that document can only be used to indicate that you would not want to be resuscitated in the event your heart stops or you stop breathing. Having an Advance Directive does not mean that you would not want to be resuscitated if your heart stopped or you stopped breathing. While a general power of attorney can include both health care and financial decision making authority, I recommend that separate documents be executed, one for health care decisions, and the other for financial decisions.
Can the same person serve as your agent under the General Power of Attorney and the Medical Power of Attorney.
Yes, but I still recommend that separate documents be used. I also recommend that you appoint not just a primary agent, but also a successor or back up agent, in case the primary agent is found to be unable or unwilling to serve when you need them.
Does my Agent named in the Power of Attorney have to be local?
No, but it can make things a bit more complicated if they live far away, especially if they will need to take charge of your real property and tangible personal property and possibly arrange for the sale or storage of your home and belongings. The same can be said for the agent you name in an advance directive. Although it’s possible for someone to manage your health care from a distance, it can be considerably more complicated. In such cases, if financial resources permit, I often recommend the hiring of a local geriatric care manager to serve as the eyes and ears of the non-local agent.
How often should the Power of Attorney be updated?
Whether you have a general power of attorney or more specific documents, your power of attorney and advance directive should be reviewed at least once every 5 years, or whenever your personal or financial circumstances change or the circumstances of your named agent change. A better rule of thumb, at least for the advance directive, might be to review the document annually on a particular date, such as your birthday, and to reiterate to your named agent(s) your wishes about the kind of care you’d want to receive whenever you’re unable to speak for yourself.
Who should I call to create or update Power of Attorney documents?
Although the Virginia Advance Directive form is freely available online from sources such as the Virginia Hospital Association website (www.vhha.com), and is spelled out verbatim in the Virginia Code at Section 54.1-2984, if you have any questions about the purpose and meaning of the document, it would be prudent to sit down with an estate planning attorney to discuss it before signing.
Although there is no Virginia form of a General Power of Attorney contained in the Virginia Code, I also recommend that you seek the advice and counsel of an estate planning attorney before creating a power of attorney for financial matters. There are power of attorney forms floating around out there on the internet, but they are not state approved or state specific, and although better than nothing, may not provide you with the protection you will want and need in the event of incapacity.
About the Author
Paul G. Izzo is an Elder Law Attorney with Thompson McMullan Attorneys at Law in Richmond, Virginia. His practice area includes estate planning for incapacity and long term care, appointment of guardians and conservators for incapacitated adults, administration of decedent’s estates, and nursing home residents’ rights. For more information, visit http://www.t-mlaw.com.