Power of attorney, health care directive and guardianship in Virginia

Financial power of attorney in Virginia

Law and official form

Law

Uniform Power of Attorney Act

Uniform Power of Attorney Act

Yes (effective July 1, 2010)

Law: Va. Code §§ 64.2-1600 et seq. (2010, cc. 455, 632

Signing rules

How to sign

The law only requires your signature. Acknowledging your signature before a notary makes it presumed genuine, and only an acknowledged (notarized) power of attorney gets the protections that require banks and others to accept it. To be recorded, for example for real estate, it must meet the recording rules in Va. Code 55.1-600.

Who signs

Signed by you (the principal), or by another person you direct to sign your name in your conscious presence.

Notary

Not required

Witnesses

None required

Agent's acknowledgment

No signed acceptance is required. An agent accepts by acting as agent or by other conduct showing acceptance, unless the power of attorney says otherwise.

Law: Va. Code 64.2-1611

Electronic signing

The Act applies to records and electronic signatures under its definitions and modifies the federal E-SIGN Act.

Law: Va. Code 64.2-1641

Law: Va. Code §§ 64.2-1603, 64.2-1617

Durable and springing

Is it durable?

A power of attorney is durable (keeps working if you lose capacity) unless it expressly says it ends when you become incapacitated.

Law: Va. Code 64.2-1602

Durable unless it says otherwise?

Yes: it continues if you lose capacity unless it says otherwise.

Starting later (springing)

A power of attorney works as soon as it is signed unless it says it starts on a later date or event. You can name people to decide in writing that the event happened. If it starts on incapacity and no one is named (or they will not decide), your attending physician and a second physician or licensed clinical psychologist can determine incapacity in writing after examining you; if you are missing or outside the U.S. and unable to return, an attorney, judge or government official can.

Law: Va. Code 64.2-1607

What an agent can and cannot do

Needs express permission

• Create, amend, revoke or terminate a trust during your life
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate authority under the power of attorney
• Waive your right to be a beneficiary of a joint and survivor annuity, including a retirement plan survivor benefit
• Exercise fiduciary powers you have authority to delegate
• Access the content of your electronic communications

No power of attorney can

Unless the power of attorney says otherwise, an agent who is not your ancestor, spouse or descendant cannot use even express powers to give themselves (or someone they must support) an interest in your property.

Law: Va. Code 64.2-1622(B)

Law: Va. Code § 64.2-1622(A)

Agent duties, pay and court review

Agent duties

• Act in line with your reasonable expectations as far as the agent knows them, otherwise in your best interest
• Act in good faith
• Act only within the authority given
• Act loyally for your benefit and avoid conflicts of interest
• Act with care, competence and diligence
• Keep records of all receipts, payments and transactions
• Cooperate with your health care decision-maker
• Try to keep your estate plan in place when that is in your best interest
• Disclose transactions within 30 days when asked by you, a guardian, conservator or other fiduciary (or explain why more time is needed, up to 30 more days)

Agent pay

Unless the power of attorney says otherwise, the agent is entitled to repayment of reasonable expenses and to reasonable compensation.

Law: Va. Code 64.2-1610

Asking a court to review an agent

You, the agent, a guardian, conservator or other fiduciary, your health care decision-maker, your spouse, parent or descendant, an adult sibling, niece or nephew, a beneficiary, the local adult protective services unit, your caregiver, or a person asked to accept the power of attorney can ask a court to interpret it or review the agent's conduct. A person owed disclosure can also petition the circuit court for discovery of the agent's records.

Law: Va. Code 64.2-1614

Law: Va. Code § 64.2-1612

When it ends and how to revoke it

It ends when

• You die
• You become a 'vulnerable adult' (the statute's term), if the power of attorney is not durable
• You revoke it
• It says it ends (a date or event)
• Its purpose is accomplished
• The agent dies, becomes incapacitated or resigns, or you revoke the agent's authority, and no other agent is named
• For an agent married to you: an action is filed for divorce, annulment or legal separation, for separate maintenance, or for custody or visitation of a child you have together, unless the power of attorney says otherwise
• The agent is convicted of financially exploiting you

Divorce ends a spouse's authority

Yes · Divorce rules in Virginia (Divorce Law Map)

How to revoke

You can revoke a power of attorney or an agent's authority. The Act does not prescribe a form or method. Signing a new power of attorney does not revoke an older one unless the new one says so.

Telling others

Tell the agent and every bank or business that has a copy. An agent or other person who acts in good faith without actual knowledge of the revocation is protected, and the act binds you.

Law: Va. Code 64.2-1608(D)

Law: Va. Code § 64.2-1608

Banks, other states and real estate

Banks and other businesses

For a notarized (acknowledged) power of attorney, a person must accept it, or ask for an agent's certification, an English translation or a lawyer's opinion, within 7 business days, and then accept within 5 business days after receiving it. It cannot demand its own form. Refusal is allowed in listed cases (for example good-faith doubt, knowledge of termination, or a report to adult protective services). Wrongful refusal can lead to a court order and liability for attorney fees and costs. An optional Agent's Certification form is in Va. Code 64.2-1639.

Law: Va. Code 64.2-1617, 64.2-1618

Signed in another state

A power of attorney signed outside Virginia is valid in Virginia if its signing followed the law of the state that governs it, the federal military power of attorney rules, or Virginia law.

Law: Va. Code 64.2-1604(C)

Real estate

To be recorded in the land records, a power of attorney must meet Va. Code 55.1-600: the circuit court clerk records a writing with an original signature once it has been acknowledged (notarized) or proved by two witnesses.

Law: Va. Code 64.2-1603, 55.1-600

Health care directive in Virginia

The document and its form

Document

Advance Directive (Advance Medical Directive)

Official form

Advance Medical Directive (suggested form, Va. Code 54.1-2984)Published by Virginia General Assembly, Code of VirginiaVersion: Statutory text as last amended in 2015 (2015, c. 109)

You do not have to use it.

Living will

Health care instructions in the advance directive (Option III: life-prolonging procedures)

Part of the directive.

Virginia uses one advance directive for both naming an agent and writing treatment wishes, including whether you want life-prolonging procedures if you have a terminal condition. You can fill in only the parts you want.

Law: Va. Code § 54.1-2984; Va. Code §§ 54.1-2983, 54.1-2984

Signing rules

How to sign

Sign the advance directive in front of two adult witnesses, who sign it too. No notary is required. If your doctor has diagnosed a terminal condition, you can also make an oral advance directive in front of your attending physician and two witnesses.

Who signs

Signed by you (the declarant), with the date.

Notary

Not required

Witnesses

2

Who cannot witness

Two witnesses who are 18 or older must see you sign. A spouse or blood relative can be a witness. Employees of health care facilities and doctors' offices acting in good faith can also be witnesses.

Law: Va. Code §§ 54.1-2982, 54.1-2983

Who can be your agent and what the agent can do

Who cannot be your agent

Any adult.

Law: Va. Code 54.1-2982 'Agent'

When the agent starts

The agent can decide only after your attending physician certifies in writing, after examining you, that you cannot make an informed decision, and a capacity reviewer also certifies it (not needed if you are unconscious or profoundly impaired after trauma or stroke). The certification is repeated at least every 180 days while care continues. One physician can find in writing that you have regained capacity.

Law: Va. Code 54.1-2983.2

Decisions an agent cannot make

The Act cannot be used to authorize nontherapeutic sterilization, abortion or psychosurgery. An agent can consent to admission to a mental health facility only if your directive expressly allows it. An agent can restrict your visitors only if your directive expressly covers visitation. The agent cannot override your wishes on organ donation.

Law: Va. Code 54.1-2983.2(C), 54.1-2983.3, 54.1-2986.1

Revoking and conflicting documents

Revoking your agent

You can revoke the whole directive or part of it, including the naming of your agent, at any time: by a signed, dated writing, by destroying or cancelling it (or having someone do so in your presence at your direction), or by saying you revoke it. The revocation takes effect when it is communicated to your attending physician.

Revoking your instructions

The same methods apply to your treatment instructions; any parts you do not revoke stay in effect.

Telling others

If the directive is in the Advance Health Care Planning Registry, the revocation must be notarized before it is sent to the Department of Health for removal; not doing so does not undo a valid revocation.

Law: Va. Code 54.1-2985(B)

Divorce ends a spouse's authority

Yes · Divorce rules in Virginia (Divorce Law Map)

Law: Va. Code § 54.1-2985

If you have no directive

Who decides without a directive

If you cannot make an informed decision and have no directive covering the decision and no agent, your doctor may rely on the first available, willing and capable person in this order. If people in the same class disagree, the doctor may follow a majority of those reasonably available.

1. A guardian
2. Your spouse (unless a divorce action is filed and not final)
3. An adult child
4. A parent
5. An adult brother or sister
6. Other relatives in descending order of blood relationship
7. An adult close to you who has shown special care and concern and knows your values (not for withholding or withdrawing life-prolonging procedures; not a provider's staff)

Law: Va. Code § 54.1-2986

Other states, registry and medical orders

Signed in another state

An advance directive signed in another state is valid in Virginia if it follows Virginia law or the law of the state where it was signed; it is read under Virginia law.

Law: Va. Code 54.1-2993

Registry

Advance Health Care Planning Registry (Virginia Department of Health, operated through Virginia Health Information)

Fee: Any fee is set by the contracted operator and may not exceed direct costs; no fee to file a revocation (12VAC5-67; Va. Code 54.1-2995).

POLST (medical orders)

Durable Do Not Resuscitate Order (DDNR); the registry also accepts 'portable medical order' forms

Mental health directive

Your advance directive can cover mental health treatment and can let your agent consent to admission to a mental health facility if it expressly says so; then a broader list of professionals can determine incapacity for that admission.

Law: Va. Code 54.1-2983.2(C)

Law: Va. Code §§ 54.1-2994, 54.1-2995, 54.1-2996; Va. Code §§ 54.1-2987.1, 54.1-2995

Guardianship and conservatorship in Virginia

What guardianship or conservatorship is

What it is called

Guardian (personal affairs), conservator (estate and financial affairs); limited guardian or conservator; temporary guardian or conservator

When a court may appoint one

An 'incapacitated person' is an adult a court finds unable to receive and evaluate information or respond to people, events or environments to the point of lacking capacity to meet essential needs for health, care and safety, or to manage property and finances. Poor judgment alone is not enough. The court or jury must find this by clear and convincing evidence and must consider less restrictive alternatives, including advance directives, supported decision-making agreements and durable powers of attorney.

Law: Va. Code 64.2-2000, 64.2-2007

Kinds

• Guardian
• Conservator
• Limited guardian or limited conservator
• Temporary guardian or conservator
• Guardian and conservator together

Law: Va. Code §§ 64.2-2000 to 64.2-2009, 17.1-275

Who can ask, which court and your own choice

Who may ask

Any person, including a community services board or any local or state government agency.

Law: Va. Code 64.2-2002

Court

Circuit court of the county or city where the adult lives or is located (or lived before entering a hospital or care facility).

Choosing your own

You can nominate a conservator or guardian in a power of attorney for the court to consider. The petition must list any guardian or conservator you nominated.

Law: Va. Code 64.2-1606(A); Va. Code 64.2-2002

Effect on a power of attorney

If a guardian, conservator or other fiduciary for your property is appointed, your agent must account to that fiduciary as well as to you. The power of attorney continues unless the court limits, suspends or ends it.

Law: Va. Code 64.2-1606(B)

Cost, fee waiver and forms

Filing fee

The circuit court clerk's fee for filing a petition for guardianship or conservatorship is $10. When a guardian or conservator qualifies, the clerk charges $20 for estates up to $50,000, $25 up to $100,000 and $30 above $100,000, with no fee for estates of $5,000 or less. The guardian ad litem's fee is set by the court and paid by the petitioner or taxed as costs.

Law: Va. Code 17.1-275(A)(42); Va. Code 17.1-275(A)(3); Va. Code 64.2-2003

Fee waiver

Petition for Proceeding in Civil Case Without Payment of Fees or Costs, form CC-1414.

Forms

• CC-1640 Cover Sheet to Petition for Appointment of Guardian and/or Conservator (rev. 01/26)
• CC-1640 instructions
• CC-1414 Petition for Proceeding in Civil Case Without Payment of Fees or Costs

Other options and where to report abuse

Supported decision-making

Supported decision-making agreements

Effective 2021 (Acts 2021, Special Session I, c. 232)

An adult with an intellectual or developmental disability can make an agreement with a supporter who helps them get and understand information, weigh options and communicate their own decisions. Courts and guardians ad litem must consider such agreements as a less restrictive alternative to guardianship.

The statute does not set signing formalities; the Department of Behavioral Health and Developmental Services develops model agreements.

Source: Official text

Less restrictive options

• Durable power of attorney: An agent you choose handles money and property.
• Advance directive: A health care agent and your treatment wishes.
• Supported decision-making agreement: Supporters help an adult with an intellectual or developmental disability make their own decisions.
• Limited guardianship or conservatorship: The court gives only the powers needed and the person keeps other rights.

Report abuse or exploitation

Adult Protective Services (Virginia Department for Aging and Rehabilitative Services; local departments of social services) · (888) 832-3858

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Law: Va. Code §§ 37.2-314.3, 64.2-2003, 64.2-2007

Good to know in Virginia

• In Virginia two adult witnesses are required for an advance directive, and a spouse or blood relative may be one of them; no notary is needed.

  Law: Va. Code 54.1-2982, 54.1-2983

• A health care agent's authority ends when a divorce or annulment action, or a custody or visitation petition for a child you share, is filed.

  Law: Va. Code 54.1-2985(A1), amended 2024, c. 81

• Banks must accept a notarized power of attorney, or ask for a certification, within 7 business days.

  Law: Va. Code 64.2-1618

• Since July 1, 2023 the court order appointing a guardian or conservator sets periodic review hearings.

  Law: Va. Code 64.2-2009(A1)

Changes in 2024–2026

2024, c. 81 amended Va. Code 54.1-2985 (agent's authority revoked by filing for divorce/annulment or a custody/visitation petition); 2024, cc. 231, 274 amended the registry sections 54.1-2994 and 54.1-2995; 2024, cc. 17, 156 amended petition contents; 2026, cc. 442, 443 amended 64.2-2000 and 64.2-2009. Acts 2026, cc. 992 and 1081 add alternate versions of 64.2-2000 and 64.2-2009 whose effective date depends on a contingency in clause 3 of those acts.

Law: 64.2-2002

Questions about powers of attorney in Virginia