A power of attorney is a document that can make both your life and the lives of your family members much easier. A power of attorney allows your agent to act on your behalf. How and when your agent, or attorney-in-fact, can act depends on the type of power of attorney.
A general, durable power of attorney is the broadest type. It allows your agent to do almost anything you could do on your behalf, with the exception of making a will. It goes into effect immediately upon signing, and it remains in effect if you become incapacitated.
Executing a power of attorney does not mean you are relinquishing your right to conduct your own affairs. If you are competent, your power of attorney should only be acting at your direction. Occasionally, people worry about giving such broad power to another person, but Virginia law requires that an agent acting under a power of attorney must act in your best interest.
There is the option to add language to a power of attorney that makes it go into effect at a certain time or under certain conditions, called a springing power of attorney. For instance, someone may only want a power of attorney in effect if they are hospitalized or unable to make decisions for themselves. One problem with using a springing power of attorney is that it can be difficult for an agent to act easily and quickly.
There are times when a limited power of attorney can be helpful. This power of attorney only allows the agent to act for a specific purpose. For example, you may be out of town for a real estate closing and you want your spouse to be able to sign loan documents for you.
An advanced medical directive is similar to a power of attorney, but it names a healthcare agent. The healthcare agent can easily talk to medical providers and make decisions for your care if you are unable. It can also state what type of care you would like to receive in the event of a terminal illness.
“It is not legally required for the individual holding financial powers to also have the medical powers of decision-making,” explained Lisa Sprinkel, Vice President of Home Health and Hospice at Carilion Clinic. “The important thing is that the individual holding the medical powers knows the values and wishes of the individual for whom they are making decisions. It is likewise important for the medical providers to know WHO those medical proxies are and get that documented in the medical record.”
Who should you name as your agent in your power of attorney?
Often people name their spouse as power of attorney first, and then an adult child if their spouse is unable or unwilling to act as the agent. Others will ask a close friend or other relative. The main requirement for choosing your agent is that the person is someone you trust.
It is important to ask the person you intend to name if they are willing to take on this role. You should make sure they know where the power attorney is kept. It is best kept in a place where the agent can quickly and easily access it. If it is kept in a safety deposit box, your agent may have trouble retrieving it. The agent may even keep a copy of the power of attorney if you are comfortable with that. The agent should keep records of what they have done on your behalf and those records should be made available if you ever have a question about what your agent has done for you.
Finally, a power of attorney can be revoked, but it must be done so formally, while you still have capacity, and the agent must be given notice.
When should you consider getting a power of attorney?
You should determine a power of attorney before you need it. You must be able to understand the power and effect of the document you are signing. Having a power of attorney in place in case you are incapacitated can save you and your family money and time. If there are no legal documents in place to allow family members to act on your behalf, and you are in a position where you are unable to take care of your own personal or business needs, your loved ones would have to file to have a guardian and conservator appointed for you. This requires many steps, including a hearing in court. It will also require the person acting on your behalf to file regular reports with the commissioner of accounts and with social services. If a power of attorney has been executed, the person named as the agent may start acting without delay, and they won’t have the same reporting requirements.
If you wait until you need it, it may be too late. A power of attorney is a helpful tool, and it is often drafted alongside wills. It is best to have an attorney draft your power of attorney so that you end up with a document that will be valid if you are ever incapacitated.
About the Author: Sarah W. Houck is a Family and Domestic Law attorney in Woods Rogers Vandeventer Black’s Lynchburg office, where she advocates for clients in custody, divorce, and support cases throughout Virginia.
