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Why You Need to Have a Durable Power of Attorney in Place

June 29, 2018, on Estate Planning |

In 2013, a stranger named April Parks took over the lives of Rudy and Rennie North. They had never met this woman in their life, but she assumed guardianship over the then 77-year-old couple. She took over their home, their finances, their personal property and their independence for over four years. The couple eventually won their independence back in a lawsuit against the woman, but only after she had taken everything from them.

This isn’t an isolated case. A quick Google search of this topic reveals millions of cases of guardianship abuse. This happens so often, in part because of the lack of oversight and gaps in state law. For example, in Virginia, all you need to do to become a guardian of an individual is to gather information relevant to your petition to become a guardian, fill out the petition form, submit that form to the court, then wait for the court’s reply or for a court hearing. You do not need to be related to the person you are seeking guardianship over.

While the individual that is alleged to need a guardian must be notified that a petition has been filed, notified of any hearings and advised of his or her legal rights, in practice, this may not always go so smoothly and any notifications about this important petition may go undelivered or unnoticed. Moreover, hiring an attorney and paying the court fees for this petition may be something some individuals cannot afford or have time for.

The lack of structure and input from both parties prior to a court hearing in this process can lead to situations like what the Norths experienced. So how can you protect yourself?

The Durable Power of Attorney

A power of attorney is a legal document that allows you to appoint someone to manage your affairs under certain situations -- the most common being when you become incapacitated or unable to care for yourself. An ordinary power of attorney is valid only until the principal becomes incapacitated or dies. A durable power of attorney is valid even after the principal becomes incapacitated, though it ends automatically when the principal dies or revokes the document.

A durable power of attorney is also commonly known as a health care power of attorney. It allows you to appoint someone (an agent) to manage your health care and end-of-life decisions on your behalf. It is crucial that the agent you appoint be someone trusted since that person will have authority to make decisions for you regarding your medical care, as well as manage your finances and property.

In some situations, if an individual does not have a power of attorney in place when a court deems the individual incapacitated or unable to manage his or her own affairs, the court will appoint a guardian for the individual who may be someone you don’t know.

While a durable power of attorney is a powerful document to protect you from unwanted guardianship, it is just as important to have an honest conversation with your loved ones about this topic.

Creating a Durable Power of Attorney

There are many online forms available for you to use to create your own power of attorney. You just need to make sure that the online form you select complies with Virginia law. As always, when dealing with documents that have such a significant impact on your life, legacy and estate, it is always best to hire the help of a professional to ensure that the document is completed and formalized correctly.

Virginia statutes require that the principal of the durable power of attorney be a competent adult, that the document has written advance directives and that the document is signed in front of two subscribing witnesses. For those who are in a terminal condition, an oral declaration in front of a physician and two witnesses is required. The principal is responsible of letting their physician know of their advance directives.

A durable power of attorney is revocable at any time. All you need to do is sign and date a document saying as much, physically destroy the document yourself or have someone else destroy it for you, or orally express your intention to revoke the document.

If you or a loved one is in an estate dispute or needs guidance on durable power of attorney documents, contact us today. Rhonda Miller is an experienced Fairfax estate dispute attorney who can help you through estate disputes or with drafting estate planning documents. Contact her today to see how she can help.