Frequently Asked Questions about Powers of Attorney

Powers of Attorney

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What is a power of attorney?

A power of attorney authorizes an “agent” to take one or more actions on the behalf of the “principal” signing the power of attorney.

Why do I need one?

Because we all need help sometimes. A power of attorney is most important when you are incapacitated, because it allows your agent to make sure that your bills are paid and your other affairs are managed. And because no one plans on being incapacitated, it is best to act while you are able. Even people who are perfectly capable need an agent from time to time. So if you are going on an extended trip abroad, or will be out of reach of overnight delivery services for a closing, it may be worth considering a power of attorney.

What is the difference between a “general” and a “special” power of attorney?

A power of attorney can be extremely broad or very narrow. A broad power of attorney is often called a “general” power of attorney, and a narrow power of attorney is known as a “special” or “specific” power of attorney. The powers you grant can be completely customized, even on a general power of attorney.

Do I need a successor agent?

It is generally advisable on a general power of attorney. Your agent is human too, after all, so your agent may move away, travel abroad, be injured, become incapacitated or die. Also, if you and your agent are together frequently, there is always a risk that the two of you will be incapacitated in the same event (a car accident, for example). On a special power of attorney, it may be less important to appoint a successor agent if the agent will only act for a limited period of time or a specific transaction.

Do I need to update my power of attorney?

That depends. Like the rest of your estate plan, you should review your power of attorney at least every 3 years. Among other things, make sure that your agents are all still alive, available, and willing to serve, and that you still want your agents to act in the order in which you have previously appointed them. Your understanding of your agent’s abilities or your trust in them may change over time. An agent may no longer need the help of a co-agent to do a good job, or you may have discovered that someone you previously thought was able to act by themselves will need help. You may also come to realize that there are certain assets over which your agent needs to have a power that you had previously withheld, or that there are powers you previously gave to your agent that you no longer wish your agent to have.

What sort of power of attorney do I need?

That depends on a number of factors. If you are not sure, the intake form will us determine what is best for your situation. But most people using powers of attorney to plan for incapacity, as an estate planning device, or as a partnership protection option usually choose a general power of attorney.

Is a power of attorney a substitute for...

...a will or a trust?

No. A power of attorney will automatically terminate at the time of the principal’s death, regardless of what is stated in the document. Advance Medical Directive or what is sometimes called a “living will” or “medical power of attorney?”

No. Under Virginia law, a general power of attorney cannot contain living will or health care power of attorney provisions.

...custody or adoption?

No. While some parental authorities can be delegated without court involvement, a power of attorney does not confer any rights to the child, only to the agent.

What are the most important considerations?

Choice of agent. Your choice of agent is probably the most important decision when making a power of attorney. You should make sure that you can answer “yes” to each of these questions:
- Do you really know and trust them?
- Do they understand your feelings and point of view?
- Will they follow your wishes if you are unable to advocate for yourself?
- Will they be willing and able to commit the time and energy required to be your agent, including the time to visit or keep in contact with you?
- Are they good with finances, or will they require outside assistance?
Powers. The second most important consideration is the need to contemplate the nature of the powers you want to grant to your agent.

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