Power of attorney in Virginia: form, signing and powers

Words used in Virginia

In Virginia you name an agent for money and property in a power of attorney, and a health care agent and your treatment wishes in one advance directive. If an adult cannot manage and has no documents, the circuit court can appoint a guardian for personal decisions, a conservator for money, or both.

An agent (also called an attorney-in-fact) is the person you choose to act for you. You are the principal.

Money and property

Power of attorney; durable power of attorney

The person you choose

Agent (includes an 'attorney-in-fact')

Health care

Advance directive (Advance Medical Directive), which can appoint a health care agent

Treatment wishes

Health care instructions in the advance directive, including Option III (life-prolonging procedures if you have a terminal condition)

Court-appointed decision-maker

Guardian (personal affairs) and conservator (money and property); limited and temporary guardians and conservators

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

How to revoke a power of attorney in Virginia

Official forms in Virginia

Forms published by the state or its courts. You open them on the official site.

Health care directive

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

Guardianship / conservatorship

• 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

Free help in Virginia

• Virginia Law Help (statewide legal aid website)
• Virginia Department of Health: Advance Health Care Directive Registry
• Code of Virginia: suggested advance directive form (54.1-2984)
• Virginia courts: guardianship/conservatorship cover sheet CC-1640

Report abuse or exploitation

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

More for Virginia

• Everything about powers of attorney in Virginia
• Health care directive
• Guardianship
• Signing checklist
• Revoke a power of attorney
• What is a power of attorney?
• Durable vs springing power of attorney