A Power of Attorney (POA) in Virginia is a written authorization allowing some individual to act instead of another, representing their interests and making legally binding decisions on the person’s behalf.
The authorizing entity granting a POA is referred to as the principal, and the person to whom authorization is granted is referred to as an attorney-in-fact or agent. Power of attorney Virginia is used to empower a chosen representative to manage some aspect of the principal’s personal or professional business in a situation where the principal is unable to do so. This can include scenarios in which the principal is incapacitated, absent, or requires the services of a professional. When such a situation occurs, the attorney-in-fact can step in and make decisions that have the same authority as the principal. A power of attorney can last for a temporary time period or the entire life of the principal.
Power of attorney is a legal tool regulated by law, and the state of Virginia is covered under the Virginia Uniform Power of Attorney Act.
10 Types of POA
A power of attorney is used to facilitate several types of arrangements, each of which is supposed to allow the principal to manage some affair even when they’re not able to do so personally. A power of attorney can be put in place for several reasons, including as a safeguard against an uncertain future, as a means of regulating some affairs, or as a convenience for facilitating the duties of a professional service provider.
The types of it are:
Advance Medical Directive
An advance medical directive is a declaration of an individual’s preferred medical treatment practices. This serves as a substitute for the individual’s treatment instructions when the individual can no longer make medical decisions independently. While not inherently a power of attorney, an advance medical directive lets an individual appoint someone to make medical decisions on their behalf when incapacitated. The appointee can prescribe medical actions in compliance with the principal’s preferences and make anatomical gifts of the principal’s body. Advance medical directives are submitted to the Advance Health Care Directive Registry and presented to the attending physician before treatment begins. Advance medical directives are covered under §54.1-2981 to 54.1-2996 of the Code of Virginia. As per §54.1-2984, an advance medical directive must be signed by the principal, dated, and be signed by two other witnesses.
Download: Microsoft Word (.docx)
Durable (Financial) Power of Attorney
This power of attorney authorizes an attorney-in-fact to manage some aspect or all of the principal’s financial matters. The agent can make transactions on the principal’s financial assets, pay bills, or control the principal’s wealth. The durable nature of this type of POA allows the agent to keep acting in their provided capacity even when the principal is incapacitated or can no longer make independent decisions. The agency relationship can last for the duration of the principal’s life. This type of POA helps ensure that the principal’s business retains adequate management even when the principal is not available.
All POAs created in Virginia are durable by default unless specified otherwise. As per §64.2-1603, the POA must be signed by the principal or in the principal’s conscious presence by another individual directed to do so by the principal, and the principal must sign the POA in the presence of a notary public or other individual authorized by law to take acknowledgments.
Download: Microsoft Word (.docx)
General (Financial) Power of Attorney
The general (financial) power of attorney allows an agent to make decisions on financial matters on behalf of the principal. This type of POA functions similarly to a durable POA with the difference that the agency relationship terminates once the principal is declared incapacitated by a medical professional. This type of POA is typically granted to brokers and financial advisers. General power of attorneys are detailed under §64.2-1622.
Download: Microsoft Word (.docx)
Limited Power of Attorney
A limited power of attorney is used to grant restricted authorization, allowing an attorney-in-fact to act within some bounded capacity and not beyond that. An agent empowered under a limited POA cannot function beyond the powers granted by the principal. An extent is clearly stated to the agent’s authority when the POA is drafted. The agent will only be able to make decisions on specific affairs or perform distinct transactions. This is as per §64.2-1622.
Download: Microsoft Word (.docx)
Minor (Child) Power of Attorney
A minor child’s power of attorney is a document that confers temporary guardianship of a minor child to a person chosen by the child’s parents or permanent guardian. The POA allows the temporary guardian to retain custody and make decisions on behalf of the child for a period. However, the state of Virginia does not use power of attorney to transfer guardianship of children. Temporary guardianship of a child can be granted to a person but only by the court. Parents cannot grant temporary guardianship but can specify in a will who they wish to delegate custody of their child to. The Guardianship of Minor Children is covered under Chapters 17 to 19 of Title 64.2 of the Code of Virginia.
Download: Microsoft Word (.docx)
Real Estate Power of Attorney
A principal can appoint a representative to act in their interest in real estate matters using this POA. The attorney-in-fact becomes authorized to make transactions with the principal’s real property. This type of POA is usually granted to real estate agents to sell, acquire, or mortgage property in the principal’s name to generate profit. §64.2-1625. provides full details about real estate POAs.
Download: Microsoft Word (.docx)
Revocation of Power of Attorney
Revocation of power of attorney documents the principal’s intent to terminate an existing POA. With this document, the powers granted by the principal to the attorney-in-fact are stripped away, and the agent can no longer make decisions on behalf of the principal. The principal draws up the revocations of POAs, signed and notarized, before being delivered to all parties who dealt with the agent under the existing POA. Revocation of power of attorney can only be regarded as valid if the principal is certified to be mentally competent while revoking the existing POA. Any revocation must be compliant with the specifications under §64.2-1608
Download: Microsoft Word (.docx)
Tax Power of Attorney (Form PAR 101)
Also known as a power of attorney and Declaration of Representative, this document authorizes an appointee to represent the principal in tax matters before Virginia Tax Department. The appointee can discuss various matters with the tax authorities on behalf of the principal and take action to assist the principal in settling tax-related issues. This authorization is typically granted to accountants or attorneys. This type of POA has a statutory form that the principal must fill out. The principal cannot draft their POA. After the form has been filled and signed, the form is to be submitted to Virginia Tax to effect the authorization.
A power of attorney granted by this document does not authorize the agent to execute a request for a tax return, receive refund checks, substitute another representative, sign certain returns for the principal, or consent to the disclosure of the principal’s tax information. The powers granted under a tax POA are covered under §64.2-1637.
Download: Microsoft Word (.docx)
Vehicle Power of Attorney (Form VSA-70)
This POA is used to grant an appointee authorization to present documents on the titling or registration before the Virginia Department of Motor Vehicles. The owner of the vehicle issues this document, and each form can only be used to serve one vehicle. All documents presented by the holder of this form are treated as though the vehicle’s owner themselves submitted them.
Download: Microsoft Word (.docx)
Springing Power of Attorney
A springing power of attorney is a contingency POA designed to activate upon a specific trigger. In the wording for this POA, the principal indicates a condition at a future date under which the attorney-in-fact gains the power to act on behalf of the principal. Again, this can be a specific event or a particular date in the future. Springing POAs are unique in that they do not activate immediately, like other POAs, but only when a triggering condition is met.
Download: Microsoft Word (.docx)
Virginia Power of Attorney Requirements
Power of attorney is a powerful legal tool and, as such, is regulated under the law to discourage exploitative criminal acts. The state of Virginia lists out specific conditions which must be satisfied when creating a power of attorney to ensure the document is complete enough to be backed by the law and prevent the exploitation of anyone. The requirements to satisfy for creating a power of attorney in Virginia are listed in §55.1-600 and §64.2-1603 of the Code of Virginia:
- the POA must be in writing.
- the POA must be signed by the principal or in the principal’s conscious presence by another individual directed to do so by the principal.
- the principal must sign the POA in the presence of a notary public or other individual authorized by law to take acknowledgments.
- the name and contact information of the agent(s).
- the date of the agreement.
- the powers grant to the attorney-in-fact
- when the powers begin and end.
Default rules of Virginia power of attorney
All powers of attorney created in Virginia possess inherent characteristics that state the extent of applicability of the POA. These inherent characteristics remain valid to a POA unless explicitly stated not to be so by the principal. These include:
- Power of attorney becomes effective immediately after being established. The agent receives immediate authorization to begin acting on behalf of the principal when needed. This exemption is a springing POA that only activates after a specific event. If a POA is set as a springing POA, this rule does not hold.
- If more than one agent is named to act by the principal, each agent can act independently of the other co-agent.
- An agent is entitled to reasonable reimbursement or compensation for any reasonable expenses incurred while acting on behalf of the principal.
- The principal’s estate plan is to be preserved by the agent unless preserving the estate is not consistent with the principal’s best interest.
- The agent is to avoid a conflict of interest with the principal’s wishes.
- The agent must be loyal to the principal in all their actions.
- The agent is to act diligently and, in the principal’s, best interest and keep records of whatever decision is made on behalf of the principal.
How to Get Power of Attorney in Virginia?
Getting a power of attorney entails an individual declaring their intent to authorize a person to act on their behalf and satisfy the appropriate authority that their representative will act for them. However, every stage of this should be completed with careful consideration of the magnitude of the authority being granted and compliance with the laws of Virginia.
Choose your agent
The person chosen to function as the principal’s representative embodies the same authority as the principal in whatever affair they are authorized to act in. Therefore, agents should be people who are trusted, have a good sense of judgment, and preferably have a record of being able to make the kinds of decisions with which they are being entrusted.
Decide powers to give your agent
An agent can only act within the authorization given by the principal. Therefore, consideration should be given to what the agent should do. Due authorization in all affairs that will allow the agent to complete their duty unimpeded should be granted, but no more.
Find a reliable form
POAs are legal documents expected to comply with some regulations. POA forms are partially-filled documents drafted by either a governmental agency or a third party that a principal can fill to declare their intention of granting authorization. For tax and vehicle POAs, the appropriate government-issued statutory forms must be used. Forms drafted in compliance with the laws of Virginia by third parties can be used for creating other POA types.
Here are a few free forms for you:
Sign the form
A POA must bear the principal’s signature to indicate that the agent was authorized legally. The principal must sign the POA (or have the POA signed on their behalf). If the POA is signed on behalf of the principal, this fact must be indicated.
Witness requirements
A POA must be signed in the presence of a notary public or other public agent authorized to acknowledge such signings. This certifies before an officer of the law that the principal is authorizing their chosen representative.
Frequently Asked Questions
It is not essential to involve a lawyer when creating a power of attorney. There is also no restriction on involving a lawyer when creating a POA. A lawyer can be consulted when drafting up a POA to decide on the amount of power to give an agent or avoid loopholes that give an agent unprecedented power. Beyond this, a lawyer is not needed for creating a POA.
Yes, the authorization granted to an attorney-in-fact can be recalled by the principal. This is accomplished by drawing up a revocation of power of attorney document. This document states the principal’s intent of terminating an existing POA. When signed by the principal and after being notarized, this document effectively revokes the agent’s powers. Parties with whom the agent might have contact must be presented a copy of this document to notify them that the agent no longer speaks for the principal.
A POA can only be recalled by a certified principal who is mentally competent to make independent decisions.
A power of attorney can only be obtained if the principal (elderly parent) is still mentally competent to make independent decisions. If so, the procedure for obtaining a POA is the same as indicated above. If the principal is no longer mentally competent, a POA cannot be obtained. To facilitate the care of such persons, a probate or family court will have to be petitioned to grant guardianship.
The cost for obtaining a power of attorney in Virginia can vary significantly based on the resources used during the process. If an attorney is engaged to create the POA, the cost of hiring the attorney can range from $150 or more. If the POA is personally drafted, obtaining a POA form will be a significant cost. However, some websites can charge as much as $30 for a form. The other significant cost is the fee of the notary public who notarizes the document. In Virginia, this fee will not exceed $5.00.
So, for a POA drawn up from a free online resource without the involvement of an attorney and acknowledged by a notary public, the cost should not exceed $5.00.
