How to Get a Durable Power of Attorney in Virginia

A durable power of attorney (POA) is an important financial and planning tool that ensures your affairs can be managed if you are ever unable to do so yourself. It’s a legal instrument in which the principal—the person executing it—authorizes an agent to handle financial and business transactions on their behalf. (Note that it does not include healthcare decisions.) 

Giving someone else the power to manage your affairs does not take away your own right to make your own decisions if you are of sound mind. The document authorizes someone in addition to you to do so and can grant only limited power if you choose.

Virginia has specific legal requirements to ensure a power of attorney document is valid. If you’re interested in creating a durable power of attorney in Virginia, it’s time to learn more about the state’s laws and regulations.

Types of powers of attorney

Powers of attorney can be durable or nondurable and can grant limited power or more general power. Under the Virginia Uniform Power of Attorney Act, all powers of attorney are assumed to be durable unless the document specifically states otherwise. Here’s a closer look at some of the various options available in Virginia.

• Durable power of attorney is effective immediately and ends only if it is revoked, meaning it stays in effect even if you’re incapacitated.
• Nondurable power of attorney also takes effect immediately but is no longer valid once you cannot make decisions for yourself, such as due to medical incapacitation, and is typically used only for short-term situations.
• Springing power of attorney does not become effective until the occurrence of a specific event, like if you become permanently incapacitated, and remains in effect until revoked by the principal or upon their death.

How to choose an agent

Under Virginia law, the agent you name in your power of attorney must be a mentally competent adult. They’re legally obligated to act in your best interest. However, it’s still important to choose someone you trust, such as a family member or close friend. Unless you grant limited power, an agent’s authority to manage your personal affairs with general powers can be wide-ranging, often including your financial affairs and making major medical decisions.

It's a good idea to first talk with the person you want to choose to make sure they are comfortable taking on the role. They are not obligated to assume the role, so you want to make sure you don't go through the process of creating it only to have the agent turn down the responsibility.

It’s also a good idea to name a successor agent. A successor agent is someone who takes over if the primary agent resigns, dies, declines to act, or is no longer able to serve. If you don’t name one, court intervention may be required in those cases to appoint a new agent.

As you make your list of who to consider naming as your agent, think about the following traits.

• Reliability. Your agent will have access to personal and financial matters that affect your well-being, so choose someone who has a history of being there for you and will follow through on your wishes and manage your affairs responsibly.
• Understanding of your wishes. Your agent should know and respect your preferences, values, and priorities, especially if they’ll be making personal or healthcare decisions.
• Financial experience. Appointing an agent with some financial knowledge or experience can be a smart move, especially if the powers granted to them include your financial affairs.

Requirements to create a durable power of attorney in Virginia

To create a power of attorney in Virginia, you must be at least 18 years of age and have the capacity to make decisions and understand what you are doing. You’ll complete the Virginia durable power of attorney form, naming your agent and choosing the powers you want to give them.

You must specify some powers you are granting to your agent. While general power is broad, under Virginia law, if you do not specifically indicate the following powers, they are not available to your agent:

• Ability to change beneficiary designations
• Ability to create or change rights of survivorship
• Authority to make a gift
• Authority to create an interest in the principal's property
• Authority to create, amend, revoke, or terminate a living trust
• Delegation of power
• Right to waive beneficiary rights in a joint or survivor annuity or retirement plan
• Exercise of fiduciary duties the principal has authority to delegate

You must sign the document before a notary for it to be legally valid. If you’re unable to physically sign, you can direct another person to sign on your behalf, as long as they do so in your conscious presence and with your clear approval.

You can also choose to have it witnessed by two individuals. Although this is not required under Virginia law, it is in other states, which means doing so provides added protection should the form need to be presented in another state.

How and when to revoke a durable power of attorney

Durable power of attorney does not end until after your death, unless you revoke it. You can revoke it at any time so long as you are mentally competent. If you are not mentally competent, the court appoints a guardian or conservator on your behalf who can then revoke the authority previously given.

Common reasons for revoking a power of attorney include a change in your relationship with your agent, concerns about their actions, or new legal or financial arrangements. To do so, you can either destroy it or state in writing that you wish to revoke the POA, providing copies of the revocation to the agent and any business or organization that might have received a copy. 

Here’s the step-by-step process for revoking your durable power of attorney in Virginia.

1. Write a revocation document. Create a written statement that you are revoking the durable power of attorney. Be sure to include details such as the date of the original document, the agent’s name, and your signature.
2. Notarize the revocation document. While not required for legal compliance, having the revocation document notarized can make it seem more official in the eyes of the law.
3. Notify your agent. Inform your agent in writing that you’ve revoked their authority. It’s important to be clear about their status so they know they can no longer act on your behalf.
4. Inform third parties. Notify any third parties that may have been working with your agent under the durable power of attorney, like financial institutions, healthcare providers, or legal counsel. They need to know that your agent no longer has authority to act.

In addition to revoking a durable power of attorney yourself, it also terminates automatically if your agent dies, becomes incapacitated, resigns, or if your agent was your spouse and you get a divorce or separation. It will also terminate if your agent is convicted of financially exploiting you.

How to create a Virginia durable power of attorney

Setting up a durable power of attorney in Virginia involves several steps. Following this process carefully can help ensure that your document is legally binding and that your chosen agent has the authority to act on your behalf if needed. 

1. Choose an agent. Select a trusted individual who can handle your financial and legal affairs responsibly. Take time to choose someone you believe will act in your best interest.
2. Prepare the document. Grant your agent authority in writing, outlining specific powers they will have, whether that’s making financial transactions, other financial powers, handling a real estate transaction, or making other informed decisions. For a springing power of attorney, you might want to specify how to determine when it comes into effect. 
3. Sign and notarize. Sign the durable power of attorney before a notary public. Adding witnesses may help if you need to use it in another state.
4. Distribute copies. Provide copies to your agent, your financial institutions, healthcare providers, and other relevant parties so that everyone involved knows who is authorized to act for you.

An up-to-date durable power of attorney provides the convenience of allowing someone else to conduct transactions for you and the protection of knowing your financial life will be managed should you be unable to do so. It’s a useful tool in many situations—and it’s also straightforward to make. Create a durable POA with LegalZoom and make sure you’re covered.

FAQs

How is a durable power of attorney different from a normal power of attorney?

A durable power of attorney remains effective if you become incapacitated and can’t make decisions, and is often used as part of end-of-life and healthcare planning to provide ongoing protection. In contrast, a nondurable power of attorney ends automatically if you lose the ability to make decisions, so it’s usually used for short-term situations.

How long does it take to get durable power of attorney in Virginia?

Obtaining a durable power of attorney in Virginia can take anywhere from a few days to a few weeks, depending on the specific powers you want to grant and whether you use a law firm or go through an online service, which can be faster. You might also need additional time to notify the relevant parties.

Does a power of attorney have to be recorded in Virginia?

In Virginia, most powers of attorney don’t need to be recorded unless they involve real estate transactions. If your agent will manage or sell real estate on your behalf, the power of attorney must be recorded with the circuit court in the county where the property is located. A law firm or local legal aid office can help you determine whether to record your power of attorney. 

How long does a durable power of attorney last in Virginia?

A durable power of attorney in Virginia remains in effect until you revoke it, pass away, or if specific conditions occur, like the death or resignation of your agent. However, you may revoke it anytime if your needs change or if you wish to appoint a new agent.​