How to Make a Power of Attorney in Virginia FAQ

What Is a Power of Attorney?

A financial power of attorney is a legal document where you, as the “principal,” appoint someone to act on your behalf as your “agent” to handle legal and financial decisions. You decide what you want your agent to have the authority to do and when your power of attorney begins and ends. There are many benefits to having a power of attorney, such as convenience and the ability to handle your financial matters when you cannot. If you suddenly couldn’t handle your financial affairs, your family would have to file a conservatorship petition, and a court would appoint someone with legal authority to act as your conservator. In Virginia, if you want someone to handle your health care and medical decisions, you would create a medical power of attorney, which is called an advance directive in Virginia.

Who Can Be My Agent?

A competent adult can serve as your agent, such as a family member, friend, attorney, or accountant. Organizations with trust powers can also serve as your agent. When choosing an agent for your power of attorney, look for someone responsible, organized, and trustworthy. An agent has a fiduciary duty to act in good faith for the benefit of the principal.

Although you could have co-agents, it is not the best idea. If your agents must act jointly, nothing will get done if they disagree. If your agents can act independently, they may contradict each other’s actions. It is better to name a primary agent and a backup or successor agent if your primary agent is unable to serve.

What Can My Agent Do in Virginia?

You decide what authority to grant your agent, such as paying bills, filing tax returns, and handling real estate transactions. In Virginia, you can give your agent the power to handle all transactions involving:

• Real property (real estate)
• Tangible personal property (possessions)
• Stocks and bonds
• Commodities and options
• Banks and other financial institutions
• Operation of entity or business
• Insurance and annuities
• Estates, trusts, and other beneficial interests
• Claims and litigation
• Personal and family maintenance
• Benefits from governmental programs, such as Social Security or civil or military service
• Retirement plans
• Taxes

Additionally, you may want your agent to have specific powers to reduce your estate to minimize estate taxes or to qualify for government benefits or programs, such as Medicaid. For those powers, you must specifically acknowledge that you are giving your agent the authority to:

• Create, amend, revoke, or terminate a living trust
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate authority granted under the power of attorney
• Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;
• Exercise fiduciary powers that the principal has authority to delegate; or
• Have authority over the content of an electronic communication of the principal

Your agent has broad power over the authority you grant, so think carefully about what you want them to have the ability to do.

What Is a Durable Power of Attorney in Virginia?

A durable power of attorney means the power of attorney remains effective even if the principal becomes incapacitated. Under §64.2–1602 of Virginia law, a power of attorney is presumed to be durable unless the document expressly provides that the incapacity of the principal terminates it.

When Is the Power of Attorney Effective?

Generally, a POA is effective in Virginia upon execution unless the principal specifies a different effective date or a triggering event within the document. If the POA is contingent on the principal’s incapacity, the determination of incapacity can be made by an attending physician and another physician or by a person authorized in the POA to make such a determination.

When Does the Power of Attorney End?

The power of attorney ends upon the death of the principal. Any time before then, the principal can revoke their power of attorney if they are still mentally competent. There are other occasions when a power of attorney ends, or the agent’s authority ends like:

• When the agent dies or is unavailable, and there is no backup or successor agent.
• When an agent is incapacitated and there is no backup or successor agent.
• When there is a termination date or event in the power of attorney, and the date or event occurs.
• When there is divorce or legal separation and your spouse is your agent, their agent authority ends unless you specify otherwise in your power of attorney.

That is why it is a good idea to name backup or successor agents in your power of attorney.

Does Virginia Have a Statutory Power of Attorney?

No. Virginia does not have a statutory power of attorney form. You can create your own power of attorney document customized to your needs or hire an estate planning attorney.

Can I Make My Own Power of Attorney in Virginia?

Yes. If you know who you want as your agent and what powers you want them to have, you are ready to make a power of attorney. Virginia does not require you to use an attorney to draft a power of attorney document. Many people looking for self-help options choose online estate planning forms. Be sure to use forms that conform with Virginia state law and can be tailored to your specific situation. If you have questions about power of attorney documents, you should consult an estate planning attorney for legal advice.

Estate planning solutions to fit your needs.

Get 10% off now

This is an advertisement. FindLaw and its affiliates are not a law firm and cannot provide legal advice.

How Do I Make My Power of Attorney Valid in Virginia?

In Virginia, you must be competent, meaning you have the mental capacity to know you are signing your power of attorney. Under §64.2-1603, you must sign your power of attorney or direct someone to sign on your behalf and in your conscious presence. A signature on a power of attorney is presumed to be genuine if you acknowledge the signature before a notary public or other individual authorized by law to take acknowledgments.

Do I Have to Notarize My Power of Attorney in Virginia?

Yes. A notary public attests that your signature on your power of attorney is genuine.

What Should I Do After Signing My Power of Attorney?

After you sign your power of attorney, provide copies to your agent and successor agents and any necessary parties, such as your bank or financial institution. Third parties may require your agent to complete an agent certification form certifying that the POA is effective, and that the agent has the authority to serve as your agent.

Does a Power of Attorney Agent Get Paid in Virginia?

Acting as an agent may be time-consuming. Your agent may be entitled to reasonable compensation and reimbursement for expenses incurred while acting on behalf of the principal unless you state otherwise in your power of attorney document.

Is My Virginia Power of Attorney Valid in Another State?

Yes. Generally, if you create a valid power of attorney according to the laws of Virginia, other states will also recognize it as valid.

Can I Revoke My Virginia Power of Attorney?

Yes. As long as you are mentally competent, you can revoke your power of attorney. To make a “Revocation of Power of Attorney,” you should refer to the date of the original power of attorney, the agent’s name, and a statement revoking that power of attorney. Sign and date the revocation in front of a notary. Distribute copies of the revocation to your agent, any successor agents, and third parties who have your original POA.

What Estate Planning Documents Should I Have in Virginia?

A power of attorney is critical when you can’t manage your finances. However, there are other estate planning documents to consider for a complete estate plan.

An advance directive, which is also called a healthcare directive, advance medical directive, or living will, is a document for healthcare decisions. You name an agent to obtain your medical records, speak with healthcare providers, and make healthcare decisions on your behalf. You can also detail what life-prolonging measures you want when you have an end-stage illness or terminal condition.

A last will and testament is a document used after your death. In your will, you appoint someone to handle your estate, called a personal representative, list beneficiaries to inherit your property and assets, and appoint guardians for your minor children and pets. If you don’t have a will, you die intestate, and a probate court follows state intestacy laws to distribute your property and decides who will care for your young children. You and your loved ones may not like the results of their decisions.

Fortunately, making a valid power of attorney and creating other Virginia estate planning documents is easy with online estate planning forms.