Forest Simple Estate Planning Blog

Receiving quality health care during one's senior years is a crucial part of aging for everyone. There are several very important documents that can help seniors ensure that they get the care they need. These documents include living wills, advance directives and powers of attorney. In Virginia, living wills can go by several different names. They are usually printed on brightly colored stock and provide directions to caregivers about what procedures to do or not do in case of an emergency.

A power of attorney is another powerful tool for making health care decisions. There are many different ways power of attorney can be granted through documentation, and each will be different depending on the needs of the specific grantor. At its core, this legal tool gives a third party power to make important decisions for the grantor in the event of incapacitation.

Most people are uncomfortable talking about their own mortality, but it’s important to plan for your wishes at the end of your life. If you have a spouse, children or grandchildren, having a will in place will provide for your family’s future needs and ensure that your preferences are followed.

When you create a will, one of the components involved in the process is designating an executor to administer your will once you pass on. The executor is responsible for following your wishes outlined in the will and executing the will according to the law.

Granting powers of attorney is a common part of the estate planning process. In some cases, however, a grantor may actually want to revoke this power. There are three distinct ways to accomplish this goal. The first is to include a termination date in the original POA agreement. While this is not a common method for revoking this privilege in Virginia or other states, it can work when a client only intends to hand this power over during a specific period of time.

A second way power of attorney is eliminated is upon the death of the principal. When the principal passes away, power of attorney is revoked under the law except for certain special exceptions, such as giving anatomical gifts, requesting an autopsy and making some final arrangements. Termination of power of attorney through a predetermined date or death, however, are not very helpful options for a living estate owner looking for a solution.

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.