Craig P. Tiller, Esq., PLLC
Serving central Virginia For more than 25 years: 434-338-7093

Forest Simple Estate Planning Blog

Enduring and general powers of attorney

An enduring power of attorney is a document that legally appoints a person to act on behalf of another with regard to financial or legal issues. They can be useful in situations where someone becomes ill or incapacitated or is spending an extended period of time outside of the country. People in Virginia might find that creating a power of attorney grants peace of mind and provides assistance when the need arises.

The difference between a general power of attorney and an enduring power of attorney is that the enduring power of attorney exists for an indefinite period. A general power of attorney usually sets forth a time period during which another person can make one's financial decisions and thereafter expires. In either case, the person appointed to act as attorney-in-fact must be older than 18 years old and should not have a direct financial stake or interest in the person who makes the power of attorney.

The importance of signature requirements in a will

The Commonwealth of Virginia, like each state in the union, has its own statutory requirements for what constitutes a valid will. A testator, the person making the will, must be a minimum age of 18 and have the proper testamentary capacity. Testamentary capacity is a lower standard than other mental states of mind and essentially means the testator understands the nature of his or her estate and is executing a document directing who receives the property upon death. It is the signature requirements, however, that cause more wills to fail than any other issue.

The testator should sign and date the will in the presence of two witnesses, both over the age of 18. These witnesses must then also sign the will in the presence of the testator. Although there is no form of attestation required by law, legal experts recommend having the witnesses sign a self-proving affidavit in front of a notary public. This may be useful if at some later date the will is challenged.

What makes a will valid in Virginia?

It’s a hard subject to talk about, but planning for your death by creating a will is an important part of caring for your family. It outlines your wishes and intentions upon your death and can alleviate potential stress for those you love. With a will, you’re creating long-lasting consequences to protect your family.

A will doesn’t need to be complicated, just enough to fit your needs, protect your assets and provide you some peace of mind.

Updating wills

Virginia residents should ensure that their will is regularly updated. Many life events can impact who is a potential beneficiary or heir. If individuals fail to update their last will and testament when necessary, the document may not be an accurate reflection of their wishes given their new situation.

For couples who get married, both parties should make sure to create their own new will. The majority of states require that a percentage of a married person's estate should be awarded to the spouse if the person dies. For married individuals who want to make other arrangements for their estate, they should make sure to detail this in their wills.

Powers of attorney offer many benefits but vulnerable to abuse

Regardless of their age, a Virginia resident could realize many benefits by creating a financial power of attorney. The individual can designate someone to take care of their finances under the conditions that they specify. Usually, a crisis, such as mental or physical incapacity, triggers the transfer of financial decisions from the principal to the agent. A person might alternatively choose to hand off financial decisions as soon as the POA is executed. For a person who no longer has the ability to manage money, a trusted agent named by the POA could prevent bills from piling up and other financial problems.

Depending on the extent of powers granted, an agent could set up a trust or alter beneficiary designations on an estate plan. A conscientious agent might take steps to limit taxes on a person by arranging for financial gifts to relatives. In other scenarios, an agent might halt transfers of money to someone who has become unpredictable, like a drug addict.

How to alter power of attorney instructions

A Virginia resident may find themselves in a position where they want or need to amend a power of attorney. This may be necessary if there is a need to change the name of an agent or alternate agent. The agent is the person who is granted the authority to make decisions on the estate owner's behalf as per the power of attorney document. In the event that changes need to be made, the document should be replaced as opposed to amended.

This is because an outside party such as a bank won't want to make errors that it could be liable for. Therefore, it may be best to avoid the perception that a change could be fraudulent by creating a new document. Where an individual is located may also determine whether or not a power of attorney can be amended as opposed to replaced.

What a financial power of attorney can do

Virginia residents who have a financial power of attorney have appointed someone to make decisions for them if they become incapacitated. There are a number of actions that an agent can take, including paying bills or making sure that taxes are filed on time. They can also manage a person's real estate holdings or make investment decisions on behalf of whoever empowered them to do so.

While the agent may have some leeway to make financial choices, they must always be made in the grantor's best interest. It is important to specify whether a power of attorney is durable or if it expires at a later date. It is also a good idea to determine if it takes effect right away or is a springing power of attorney. Springing financial powers of attorney wouldn't take effect until a person is incapacitated, and they can also be durable in nature.

What is a simple will?

It is easy to procrastinate when it comes to making a will. It is not fun to have to think about your eventual death. It is natural for us to believe we will die so far into the future that we have time later to get to a will. The problem is, if you die unexpectedly without a valid last will and testament, it will be up to state law to decide what happens to your estate. Any of your final wishes will not be known.

The easy way to make sure your final wishes are carried out is by creating a simple will. Also known as a basic will, this document can accomplish everything you may need in a will without being as time consuming as a complex will. Even if you believe your family knows what to do when you pass, having a will takes away any confusion that may arise.

Why a person may decline to be an agent

If a person is designated by a parent or close friend as that individual's power of attorney, that person has a right to decline. There are many reasons why this may be a good idea. For instance, the parent may live in Virginia while the child designated as power of attorney lives on the other side of the country. It is also possible that whoever is asked to fulfill the role simply isn't capable of doing so.

Even if the designated person feels capable of doing so when asked to fulfill the role, life events could make that impossible in the future. For instance, someone who works 60 hours a week may not have time to make emergency decisions or be available for days at a time in case something happens. It is also important to consider how the family dynamic will change prior to agreeing to be power of attorney.

Do I really need an advance medical directive?

An advance medical directive is a type of legal document that allows someone else to make medical decisions on your behalf if you are incapacitated. This document makes a lot of sense for someone who is elderly or who suffers from a serious illness. But if you are young and in good health, you may be wondering: Is it really necessary for me to make one?

Everyone should have an advance medical directive

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Craig P. Tiller, Esq., PLLC

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Forest, VA 24551

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