Planning with Powers of Attorney – the Virginia Uniform Power of Attorney Act - October 2012
I have practiced law in Virginia for almost thirty years, focusing primarily on 遗产规划及管理，以及相关的企业继任计划. 在过去十年中, I have found that the number of issues and controversies surrounding the use and abuse of powers of attorneys has increased dramatically. 这可能是由于许多不同的因素, 包括我们日益增多的诉讼人口, the easy accessibility of form documents via the Internet and other sources, the historical reluctance of third parties to accept powers of attorney in many instances, and the fact that people are living longer because of medical advances.
A national study in 2002 revealed an increasing divergence of legislation among different states with regard to powers of attorney and resulted in the promulgation of the Uniform Power of Attorney Act (“UPOAA”), adopted by Virginia effective in 2010 and now adopted in all fifty states and the District of Columbia. While the pertinent provisions of the Code of Virginia implementing the UPOAA have been repealed, 2012年10月生效, they will be recodified as of that date with new statutory section numbers, UPOAA将基本保持不变.
在一般情况下, 委托书有两种类型, 委托人将财产赠与另一个人的财产, 代理, 代表他或她行事的直接权利, 另一个, 有时被称为“授权委托书”, which confers on an agent authority to act contingent on certain conditions being met, usually upon the principal becoming mentally or physically incapacitated.
The UPOAA clarifies and simplifies a number of Virginia statutes which can now be incorporated by specific reference by a principal in his or her power of attorney without having to list each and every power separately; these statutes will be specifically referenced in new title 64.《皇冠搏彩APP下载》第2条，2012年10月生效.
另一方面, 有很多异能, 通常被称为“热力量”,” which a principal can only grant to an agent by making specific reference to them in the power of attorney:
·创建、修改或撤销内部信任
· Making a gift of an amount which is greater than 代理’s usual pattern of gifting
·创建或修改遗属账户
· Creating or modifying beneficiary designations on plans or policies
· Delegating authority under a power of attorney to a third party
· Waiving a principal’s right to benefit under a joint and survivor annuity or retirement plan
· Exercising fiduciary powers of the principal which may be delegated.
UPOAA还为第三方提供责任保护, 比如银行和金融机构, which rely on and accept a properly executed and notarized power of attorney. 相反, there are now statutory penalties for third parties who refuse to accept a properly executed and notarized power of attorney. 从历史上看, clients have often encountered difficulties with banks or financial providers which would not accept a valid power of attorney simply because it was an older document.
A significant change implemented by the UPOAA is that any power of attorney executed on or after July 1, 2010年现在被认为是持久的, meaning that it will remain legally operative upon the incapacity of the principal, 除非文件另有明文规定.
我建议客户，委托书是, 顾名思义, a very “powerful” document and should not be executed by a principal without considerable care and thought being given both to its substantive terms and to 代理 or agents who are being granted authority to act thereunder. 取决于家庭动态, a family member may or may not always be the best choice to name as an agent under a power of attorney; in some circumstances naming several agents with the requirement that they act jointly may be an appropriate choice.
If a family member or any interested party suspects that an agent under a valid power of attorney is misusing his authority and not acting in the principal’s best interests, there are now appropriate statutory remedies whereby an accounting can be demanded from an agent, either while the principal is still living or after a principal is deceased, for a period within five years prior to the date of the principal’s death.
总之, while the statutory framework governing powers of attorney in Virginia has changed dramatically over the last two years, 为这一领域提供了更大程度的清晰度和特异性, and properly drafted powers of attorney can greatly enhance an estate plan, they can also provide opportunities for fraud and abuse if not carefully monitored.
写的 H. 亚历山大•约翰逊.