Virginia Durable Power of Attorney Form

A Virginia durable power of attorney allows an individual to appoint someone to act on their behalf for financial matters like bill payments, property transactions, and other affairs. It is especially helpful for older people and those seeking assistance in their best financial interests. Unless the document specifically states otherwise, your agent can still act on your behalf if you become incapacitated.

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Specific Powers and Limitations

Restrictions on Gifts and Transfers

If a DPOA includes language that gives the agent general authority regarding gifts, it only allows the agent to make gifts under certain conditions (§ 64.2-1638). The principal can specify otherwise in the document.

Types of Gifts

Here are the gifts an agent can make on the principal’s behalf:

• Directly to individuals: An agent can make direct transfers of property or assets directly to others. Please note that they shouldn’t surpass the annual dollar limits of the federal gift tax exclusion (per Internal Revenue Code 26 U.S.C. § 2503 (b)).
• For the benefit of individuals: An agent can make a gift for the benefit of an individual. Some examples include a gift to a trust, a custodial trust under the Uniform Custodial Trust Act, an account under the Uniform Transfers to Minors Act, and a 529 tuition savings account or prepaid tuition plan.
• Split gifts: The agent can consent to the division of a gift that the principal’s spouse made in an amount per recipient that will not exceed the aggregate annual gift tax exclusion for both partners.

Considerations

• The type and value of the principal’s property.
• The principal’s impending obligations and need for maintenance.
• Strategies for minimizing gift, income, inheritance, generation-skipping transfer, and estate taxes.
• The principal’s suitability for entry into a regulated state benefits program.
• The principal’s background when making or joining in making gifts.

Agent’s Authority Limitations

In many circumstances, an agent can’t use a gift, right of survivorship, beneficiary designation, disclaimer, or another method to create an interest in the principal’s property for themselves or someone to whom they owe legal support. Exceptions exist for descendants, spouses, and ancestors of the principal (§ 64.2-1622).

Furthermore, agents must have explicit permission from the principal to perform the following acts on their behalf:

• Create, terminate, revoke, or amend an inter vivos trust.
• Make a gift.
• Create or change rights of survivorship or beneficiary designation.
• Delegate authority that the principal granted under the DPOA.
• Waive the principal’s right to be a beneficiary of a joint and survivor annuity.
• Exercise fiduciary powers that the principal has permission to delegate.
• Have authority over the principal’s electronic communication provided by § 64.2-123.

Revocation and Termination

Termination

The DPOA terminates in the following instances (§ 64.2-1608):

• The principal passes away.
• The principal revokes the document.
• The document states that it terminates.
• The document accomplishes its intended purpose.
• The principal revokes the agent’s authority.
• The agent passes away, becomes a vulnerable adult, or resigns, and the DPOA doesn’t name another agent.

The agent’s authority concludes under any of the following circumstances:

• The principal revokes the authority.
• The agent passes away, becomes a vulnerable adult, or resigns.
• The agent is convicted of financial exploitation of the principal under § 18.2-178.2.
• The power of attorney terminates.
• Unless the document provides otherwise, an action is filed for one of the following:
  • By either the agent or principal for visitation or custody of a child in common with the other.
  • For the annulment or divorce of the principal’s marriage to the agent or their legal separation.
  • By either the agent or principal for separate maintenance from the other.

Revocation

You can revoke a DPOA by creating a new document with a declaration of your removal of all former authority that you previously granted. Alternatively, you can complete a revocation form. Follow these steps:

1. Complete the form.
2. Have a notary public acknowledge it.
3. Provide a copy to your former agent and any third parties that stored the original document.
4. File the revocation with the same Virginia Circuit Court Clerk’s Office if you recorded the original document there.

Safekeeping and Registration

Virginia doesn’t have a statewide registry for the principal and agent to store a DPOA. However, the principal must record the document in a local Virginia Circuit Court Clerk’s Office if the document grants authority over real estate matters.

Please note that the office must be in the same county where the real estate resides. If the DPOA grants authority over real estate in multiple counties, the principal should account for this complexity when recording their document.

Additional Resources

• VAELA: Provides information on DPOAs for elders and individuals with special needs.
• Virginia State Bar: Provides public resources to help individuals navigate legal matters.
• VALegalAid.org: Helps individuals access legal resources.