A Durable Power of Attorney is a crucial part of every estate plan and in Virginia, is governed by the Uniform Power of Attorney Act in the Virginia Code, Section 64.2. It is a legal document that authorizes one or more agents (also called an “attorney in fact”) to be able to act on your behalf to manage property and finances. It is called “durable” because it endures even if you become incapacitated and unable to manage your own affairs.

Typically, a durable power of attorney is also a “general” power of attorney, meaning that it authorizes broad powers for the agent to be able to do anything the principal (the person signing the POA) can do.

At heart, a power of attorney is a contract. To validly sign the contract, the principal must have sufficient capacity, what we call “contractual capacity.” Essentially, this means that you need to be able to understand the nature and effect of the document in the way a reasonable person could understand it.

Unfortunately, as we age, we become more prone to both physical and mental ailments, including such mental conditions as dementia or Alzheimer’s, which are conditions that can affect not only our memory but our ability to make sound decisions.

For this reason in particular, it is important to get a POA in place sooner rather than later so that there is always someone with the authority to manage your affairs. The alternative is seeking a conservatorship, (often in combination with a guardianship), which is a court-ordered appointment of someone to manage your affairs or to manage your healthcare and safety. This can be an onerous and expensive process, and unfortunately affects other civil rights as it entails a legal finding of incompetency. All of this can usually be avoided, however, with a well-drafted durable power of attorney.

A durable power of attorney does expire at death, however, so it does not replace the need for a personal representative of your estate, should you need one.

Lastly, please beware of POA forms found on the internet, as many are based on the laws of other states, which may have different requirements for validity and different requirements concerning certain “hot powers” (powers that require special, explicit authorization to be included).

It is always a good idea to have a local attorney prepare this important document. We include them by default in all of our estate planning packages at Mata & Hill PLC.