Estate Planning Services  |  Power of Attorney
 

If you do not have a power of attorney and become unable to manage your personal or business affairs, it may become necessary for a court to appoint one or more people to act for you. As an estate planning lawyer, I advise against this approach and encourage you to plan ahead and designate a power of attorney who will act for you within the authority you provide.

The power of attorney is an important part of your estate planning. Valid in all states, these documents give one or more persons the power to act on your behalf. The power may be limited to a particular activity (closing the sale of your home) or general in its application (empowering one or more persons to act on your behalf in a variety of situations).

If something unforeseen should happen to you and no power of attorney has been created, you could be leaving your family in a huge legal mess. We see this happen frequently to families in Virginia Beach, Norfolk, Chesapeake, Portsmouth, Suffolk, Hampton, and Newport News.

Crafting your power of attorney can take less than an hour of your time, and can take many forms, such as:
• take effect immediately
• take effect only upon the occurrence of a future event, like a determination that you are unable to act for yourself.
  This is known as a "springing" power of attorney.
• give temporary authority to act on your behalf
• give continuous, permanent authority to act on your behalf

The person named in a power of attorney to act on your behalf is commonly referred to as your "agent" or "attorney-in-fact." With a valid power of attorney, your agent can take any action permitted in the document. Often your agent must present the actual document to invoke the power. For example, if another person is acting on your behalf to sell an automobile, the motor vehicles department generally will require that the power of attorney be presented before your agent's authority to sign the title will be honored.

Similarly, an agent who signs documents to buy or sell real property on your behalf must present the power of attorney to the title company. The same applies to sale of securities or opening and closing bank accounts. However, your agent generally should not need to present the power of attorney when signing checks for you.

The benefit of a power of attorney
Why would anyone give such sweeping authority to another person? One answer is convenience. If you are buying or selling assets and do not wish to appear in person to close the transaction, you may take advantage of a power of attorney. Another important reason to use a power of attorney is to prepare for situations when you may not be able to act on your own behalf due to absence or incapacity. Such a disability may be temporary (e.g., due to travel, accident or illness) or it may be permanent.

If you do not have a power of attorney and become unable to manage your personal or business affairs, it may become necessary for a court to appoint one or more people to act for you. People appointed in this manner are referred to as guardians in Virginia.

If a court proceeding is needed, you may not have the ability to choose the person who will act for you. With a power of attorney, you choose who will act and you define their authority and its limits, if any.

Who Should Be Your Agent?
You may wish to choose a family member to act on your behalf. Many people name their spouses or one or more children. In naming more than one person to act as agent at the same time, be alert to the possibility that all may not be available to act when needed, or they may not agree. The designation of co-agents should indicate whether you wish to have the majority act in the absence of full availability and agreement. You should name a successor agent to address the possibility that the person you name as agent may be unavailable or unable to act when the time comes.

There are no special qualifications necessary for someone to act as an agent except that the person must not be a minor or otherwise incapacitated. The best choice is someone you trust.

Beyond Signing Checks
In addition to managing your day-to-day financial affairs, your agent can take steps to implement your estate plan. Although an agent cannot revise your will on your behalf, some jurisdictions permit an agent to create or amend trusts for you during your lifetime, or to transfer your assets to trusts you created. It is prudent to include in the power of attorney a clear statement of whether you wish your agent to have these powers.

Gifts are an important tool for many estate plans, and your agent can make gifts on your behalf, subject to guidelines that you set forth in your power of attorney. For example, you may wish to permit your agent to make "annual exclusion" gifts (currently up to $11,000 in value per recipient per year) on your behalf to your children and grandchildren.

What if I move?
Many residents in Norfolk, Chesapeake, Virginia Beach, Portsmouth, Suffolk, Newport News and Hampton change states frequently due to their military status. Generally, a power of attorney that is valid when you sign it will remain valid even if you change your state of residence. It should not be necessary to sign a new power of attorney merely because you have moved to a new state, but it is a good idea to take the opportunity to update your power of attorney.

Will my Power of Attorney expire?
Some states used to require renewal of powers of attorney for continuing validity. Today, most states, including Virginia, allow durable powers of attorney that once signed remain valid until you die or revoke the document.

However, you should periodically meet with your estate planning attorney to revisit a power of attorney and consider whether your choice of agent still meets your needs. This also give you an opportunity to learn whether developments in state law affect your power of attorney, as well as your wills, trusts and estate plan.

How to execute a power of attorney
Alperin Law serves individuals and families in Virginia Beach, Norfolk, Chesapeake, Portsmouth, Suffolk, Hampton, and Newport News and can help you think through the best person or persons to be your power of attorney, and the kind of authority they should have.


About Alperin Law
Our law firm provides a wide variety of estate planning services including wills, trusts, advance medical directives, estate planning tools, asset protection, minimize estate taxes, beneficiaries, revocable trusts, irrevocable trusts, life insurance trusts, medical powers of attorney, durable powers of attorney, probate and estate administration, and tax planning. Our estate planning attorneys serve clients in Virginia Beach, Norfolk, Chesapeake, Portsmouth, Suffolk, Hampton, Newport News, Hampton Roads, and throughout Virginia.

For a no-cost phone consultation, feel free to call us at (757) 490-3500 or fill out this form.