Roanoke General Power of Attorney Lawyer

Proper planning protects your assets and your family if you become physically or mentally incapable of taking care of or making decisions for yourself. Implementing a general power of attorney (POA) is an excellent opportunity for you to choose someone, known as an agent, to act on your behalf based on your wishes.

A compassionate and knowledgeable Roanoke estate planning attorney at Select Law Partners PLLC can help you craft the comprehensive estate plan you need to protect your future self and your family. Contact our legal team to request a confidential consultation today and learn more about what a general power of attorney entails and how to choose the right agent for your plan.

roanoke general power of attorney

What is a power of attorney?

A POA is a legal document allowing a trusted agent designated by you to make important decisions on your behalf. Powers of attorney help you be prepared for unexpected situations, such as sudden injuries or illness, that make you unable to manage your affairs. The powers given in POAs can be limited or broad.

Read: When should you give someone power of attorney?

What’s the difference between general and durable POAs?

It is essential to understand the different types of powers of attorney in Virginia to choose the one that best suits your needs and understand your agent’s powers. POAs in Virginia can be general or limited. They can also be durable.

Differences between general and limited POAs

There are differences between general POAs and limited POAs. A general power of attorney gives your agent broad authority to make financial decisions on your behalf, whereas a limited power of attorney limits your agent’s financial decision-making authority. In addition, a general POA allows your agent to make decisions for various functions and needs without being required to name them. At the same time, a limited POA limits your agent’s authority to deal with particular issues.

Differences between non-durable and durable POAs

The primary difference between non-durable POAs and durable POAs is when your agent’s power ends. A non-durable power of attorney ends the moment you become incapacitated, rendering your agent unable to make decisions for you. At the same time, a durable POA remains in effect if you become incapacitated and does not end until you pass away or revoke your agent’s power. Under Virginia’s Uniform Power of Attorney Act, POAs are automatically durable unless expressly stated otherwise.

POAs are automatically durable unless otherwise indicated

In the Uniform Power of Attorney Act, “durable” is defined as a power that doesn’t end if the person who made it (the principal) becomes unable to make decisions. A person is seen as “incapacitated” if they can’t handle their finances or business because:

  • They have a condition that stops them from understanding or getting information, or making or sharing decisions, even with tech help.
  • They live outside the country and can’t return to the U.S.

According to VA power of attorney laws, these powers can be set up through any written document or record that gives someone else (the agent) the power to act for the principal. It doesn’t have to say “power of attorney” specifically. This is why talking to a lawyer is essential when making these documents. You want to ensure you’re not accidentally giving someone too much control without meaning to.

How can a POA help you and your loved ones?

Being unprepared for the future and unexpected accidents that can lead to you becoming incapacitated can cause you and your loved ones tremendous stress. In addition to providing you and your family invaluable peace of mind, a POA can relieve stress relating to:

  • Handling your financial matters
  • Collecting and paying your debts
  • Depositing and cashing checks
  • Paying your health care expenses
  • Applying for public benefits
  • Managing your business
  • Pressing charges on your behalf

Our experienced Roanoke general POA lawyers can draft a POA that can address all your potential future needs and reduce your worries related to your future care.

Is there anything your Virginia power of attorney cannot do?

Your limited power of attorney agent can only do the specific tasks identified in your POA. Despite your durable general power of attorney having a much broader list of powers they can handle on your behalf, specific tasks are forbidden. Actions your POA cannot take include the following:

  • Making decisions for you after your death
  • Voting on your behalf
  • Preparing a will for you
  • Acting outside of your fiduciary interest

All about POA agents: Selecting an agent and understanding their duties

How do I choose the right person to be my agent?

When determining who you will designate as your agent, you must feel confident they will act in your best interests. You should also ensure they will act as your POA and manage your affairs if necessary. As such, you should discuss your desire to make them your agent with your desired POA.

The person you designate to be your durable POA should abide by the following guidelines:

  • Act only under the authority provided to them in your POA
  • Preserve your estate plan the best they can
  • Make decisions that are in your best interest and align with your wishes
  • Keep records of all transactions made on your behalf
  • Retain thorough documentation of all expenditures made for you
  • Cooperate with any other agents designated by you for decisions such as healthcare

You should consider designating a second or successor agent in the event your chosen POA becomes unable to perform their duties on your behalf. Reasons your initial agent may be incapable of acting as your POA include incapacitation, refusal, resignation, or death. If you designate multiple agents, they can share in the decision-making power.

roanoke general power of attorney lawyer

What is my agent’s fiduciary duty?

Essentially, your agent is tasked with acting as a fiduciary. A fiduciary is a person who holds a position of trust over another individual. As such, they must act on the other’s behalf in good faith and trust to put the other person’s interests ahead of their own.

As a fiduciary, your POA is legally and ethically bound to act in your best interests. Their fiduciary duties include the following:

  • A duty of care: Your agent should use sound judgment to act within the scope granted to them by the POA.
  • A duty of loyalty: Your agent must put your interests before theirs.
  • A duty of full disclosure: Your agent must inform the beneficiaries of your will or trust about all information relevant to those documents.

If your agent breaches these duties, you may be entitled to damages if you prove the breach caused you losses. A breach of fiduciary duty claim can be filed in a Virginia court. The statute of limitations for such claims is two years from the date the breach of fiduciary duty was discovered.

Can anything be done if your agent misuses their POA authority?

If you can mentally do so, you can revoke your agent’s POA authority if they misuse their power or improperly handle your business. If you revoke their POA, notify them in writing and inform your banking institutions so they know that the person is no longer authorized to act on your behalf.

A family member or co-agent can submit a written request asking the appointed agent to disclose all actions taken on your behalf within the past five years if your agent misuses their authority.  Under the Uniform Power of Attorney Act, your agent must allow a reasonable inspection of all records regarding those actions. Suppose they refuse to comply within 60 days. In that case, a party interested in your welfare can file a legal action in Virginia to obtain a court order requiring the agent to provide the records requested.

Why is it important to have an official POA?

If you do not create a power of attorney, your family must go to court to have a conservatorship or guardianship enacted to manage your estate. These proceedings require the help and guidance of a lawyer, which can cost a lot of time and money. As such, it is wise to retain an estate planning lawyer to help you plan ahead for unexpected situations that could leave you disabled or incapacitated.

A conservatorship is when the court appoints a conservator to manage one’s financial affairs after a loss in mental capacity. A guardianship is when a person is legally appointed to oversee the physical and medical care of an individual with limited capacity. While a conservatorship and a guardianship are different, one individual can serve in both roles.

To appoint a guardian or conservator in Virginia, an individual should file a petition with the Virginia Circuit Court where the incapacitated individual lives. Once the petition is filed, a hearing will be scheduled for the judge to hear evidence as to why guardianship or conservatorship is necessary and who should be appointed.

Read: A Common Mistake Regarding Powers of Attorney

What are the requirements for creating a POA?

To help people in Roanoke avoid making legal agreements when they can’t legally do so, either because they’re unable to make decisions or for other reasons, the state has set up rules for creating a valid power of attorney (POA). Here’s what you need to know to make a general POA:

Signing the document

The person making the POA (the principal) must sign it. If they can’t sign it themselves, they can have someone else sign it for them while they watch. This signing should be done in front of a notary public or someone else who is legally allowed to confirm signatures.

Mental capacity

The person making the POA must understand what they’re doing. In Virginia, it’s assumed that adults can make their own decisions unless a doctor says they can’t. Just one doctor’s diagnosis isn’t enough; there needs to be more proof from a doctor. Also, if someone is forced to sign a POA because they’re scared or pressured, then it doesn’t count.

Notarization

To ensure the POA is respected and follows the principal’s wishes, it should be signed before a notary or another official. If the principal can’t sign it themselves, someone else can sign for them, but this must be done before the notary.

A durable POA means you don’t need a court to appoint someone to make financial decisions if you can’t do it yourself. This saves time and ensures you choose who makes those decisions.

We’re ready to help you draft your general POA

If you are prepared to help your family and save them the stress of having a guardianship or conservatorship established if you become incapacitated, you need a POA. Our estate planning lawyers in Roanoke can help you with your POA and other estate planning needs. Give your family peace of mind by calling our team at (855) 541-4867 today to schedule a consultation to discuss your needs.