By: Joseph T. Buxton III, CELA*, Founder, TrustBuilders Law Group 

In 2010, the Virginia General Assembly passed the Virginia Uniform Power of Attorney Act.  This was the first major overhaul of the law regarding the use of powers of attorney in Virginia since the Revolution.  Now, instead of relying on English common law, the law regarding how it be used and make-up of powers of attorney is now a statute.  There are several reasons why this was a new law was formed.  First, prior to the passage of the Act, there were as many types and forms of powers of attorney as there were lawyers drafting them.  As a result, when individuals used a power of attorney, that is, the authorization of another person to act on their behalf, many banks and other institutions were reviewing the documents and refusing to honor them for various reasons.  This created a complex situation.  For example, if a disabled parent had named her children as her agents to act for her in the event of her disability and they were unable to have the bank holding the mother’s funds honor the document, they were forced to go to court either to become appointed a legal conservator or to attempt to force the bank to accept the document.  This was an unattractive option. Another reason is that the legislature felt compelled to make the law regarding the make-up and the use of Powers of Attorney was to make clear the language that could be incorporated into the document and standardize the provisions for Powers of Attorney.  The goal was to eliminate the need for financial institutions, banks, credit unions, and the other organizations to refer these documents to their legal departments for analysis and approval because under the Act, if an individual incorporates the standard provisions of the Code into the Power of Attorney, then the statutory language governs and there is virtually no need for further analysis.  In addition, the Act provides for remedies if a Power of Attorney is rejected the agent can now take steps to have the document honored.  As a result of these changes in the law, folks who have Powers of Attorney written prior to July 1, 2010, ought to have their documents reviewed and updated to incorporate the benefits of the new law.

 

* Certified Elder Law Attorney by the National Elder Law Foundation