Estate Planning 101

When Does a Power of Attorney Expire in Virginia

This article will delve into the different types of POAs, their durations, and their expiration policies within the jurisdiction of Virginia. We will also explore the potential responsibilities that someone with POA may have to handle after the death of the individual they represented.
September 14, 2023

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In the Commonwealth of Virginia, a Power of Attorney (POA) is a vital legal instrument that allows an individual, known as the principal, to designate another person, known as the agent or attorney-in-fact, to act on their behalf. The duration and termination of a POA can be complex, largely depending on its type - durable, springing, limited, or medical - and the specific terms set in the document.

The lifespan of a Power of Attorney is often stipulated in the document:

Generally, in Virginia, the duration of a POA is determined by the terms and conditions laid down in the POA document itself. This indicates that a POA may be set to expire on a specific date, upon the occurrence of a specific event, or upon the incapacitation or death of the principal. These conditions can be tailored by the principal when drafting the POA to meet their specific needs.

The duration of a Power of Attorney is also influenced by its type:

Understanding the different types of POAs and their respective expiration rules is key. Each type of POA has its unique features and expiration rules.

  1. Durable Power of Attorney: This type of POA stays in effect even if the principal becomes mentally incapacitated. For instance, if a principal has been diagnosed with dementia, the durable POA will remain in effect, allowing the agent to make decisions on their behalf. However, like all POAs, it ceases upon the principal's death.
  2. Springing Power of Attorney: A springing POA springs into action under specific circumstances, typically the principal's incapacitation. For example, if a principal suffers a debilitating stroke and is unable to make decisions, a springing POA would become effective, enabling the agent to make necessary decisions. This POA ceases to be valid once the principal regains capacity, unless otherwise specified in the agreement.
  3. Limited Power of Attorney: Also known as a special POA, it is used for a specific purpose or for a limited period. For example, if a principal needs someone to manage their affairs while they are out of town, a limited POA could be used. Once the specific task is completed or the duration is over, the POA automatically ends.
  4. Medical Power of Attorney: This type of POA empowers the agent to make medical decisions on behalf of the principal if they become unable to do so. This type of POA expires when the principal dies or revokes the POA, or when the principal regains the ability to make their own decisions.

Acquiring knowledge about these different types of POAs and their respective expiration rules can help individuals and their appointed agents to navigate the legal landscape of power of attorney in Virginia more effectively.

Revoking a Power of Attorney:

If a principal decides to revoke a POA before its stated expiration date, they must follow certain legal procedures under Virginia law. Revoking a POA is not as straightforward as deciding one day that the agreement is over. It requires a good understanding of legal procedures to ensure that all responsibilities are correctly terminated.

  1. The principal must create a written notice of revocation. This document should include the principal's name, the agent's name, and the date the original POA was executed. This document must be signed and dated by the principal.
  2. The principal should then deliver this revocation notice to the agent. This can be done in person or through certified mail with return receipt requested, to ensure proof of delivery. It is also recommended to notify any third parties, like banks or other financial institutions, that may have been dealing with the agent under the authority of the POA.

Once these steps are completed, the revocation is generally effective immediately, and the agent no longer has the authority to act on behalf of the principal. However, in some cases, such as with a durable POA, the principal may need to record the revocation at the local county recorder's office where the original POA was filed.

It's important to note that if the principal is mentally incapacitated, they cannot legally revoke a POA. In such a case, a court may need to intervene to determine the validity of the revocation. If you are considering revoking a POA, it's always recommended to consult with an experienced lawyer to guide you through the process in accordance with Virginia law.

Power of Attorney after the principal's death:

Once the principal passes away, the POA generally becomes null and void. The agent does not have the power to handle the deceased's estate. This responsibility falls to the executor mentioned in the deceased's will or to the administrator appointed by the probate court if no will exists.

The executor or administrator's role begins upon the principal's death, whereas the agent's role ends. The executor or administrator is responsible for gathering the deceased's assets, paying off any debts or taxes, and distributing the remaining assets to the beneficiaries as specified in the will, all under the supervision of the probate court.

Trustees, on the other hand, are individuals or entities appointed to manage a trust established by the principal. Unlike a POA or executor, a trustee's role does not necessarily end with the death of the principal. Instead, their responsibilities continue as outlined in the terms of the trust agreement, which may include distributing the trust's assets to beneficiaries.

In some instances, the agent may also be named as the executor or trustee. In such cases, their responsibilities could extend beyond the principal's death, but their role changes. As an executor or trustee, they are no longer acting under the authority of the POA but rather under the authority of the will or trust agreement.