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The Virginia Uniform Power of Attorney Act
Andrew H. Hook, CELA, CFP®
Lisa V. Johnson, Esquire
Oast & Hook, P.C.Attorneys and Counselors at Law
Serving Virginia and North CarolinaTel: 757-399-7506 | Tel: 252-722-2890
Fax: 757-397-1267 www.oasthook.com
Copyright 2009 by Oast & Hook2
Why Do We Need a New POA Statute? There is a growing divergence among state POA
statutes.
Results from a 2002 national survey demonstrated the need for a comprehensive statute that would address the following:
Confirmation of activation of contingent powers
Revocation of spouse-agent’s authority upon dissolution or annulment of marriage to principal
Portability
Copyright 2009 by Oast & Hook3
Survey Results Continued…
Requirement that gifting authority to be expressly granted
Providing default standard for fiduciary duties Permitting principal to alter default fiduciary
standard Requirement of notice from agent when agent is no
longer willing or able to act Safeguards against abuse by an agent Remedies and sanctions for abuse by an agent Protection for reliance of third parties on a POA Remedies and sanctions for refusal of third parties
to honor a POA.
Copyright 2009 by Oast & Hook4
Why Do We Need a New POA Statute?
Modern Default Rules Preserve POAs as a low-cost,
flexible and private form of surrogate decision making
Copyright 2009 by Oast & Hook5
Encourages Acceptance
Provides broad protection for good faith acceptance or refusal of an acknowledged POA by third parties. Honesty in Fact Authority to request agent certification or
opinion of counsel Rejects imputed knowledge
Sanctions for unreasonable refusal to accept POA by third party (including Attorneys’ fees)
Copyright 2009 by Oast & Hook6
Provides Protection for Principals
Mandatory and default duties for agents
Liability for agent misconduct
Broad standing for judicial review
Requires express language for “hot powers”
Copyright 2009 by Oast & Hook7
Protection of Agents
Agent who acts with care, competence and diligence will not be liable solely because the agent
also benefits from the transaction or has a conflicting interest.
Copyright 2009 by Oast & Hook8
Assists in Drafting POA
Modern definitions of authority
Default Rules which can be customized
Incorporation of powers by reference
“Portability”
Statutory Short Form POA
Copyright 2009 by Oast & Hook9
Retains Popular Existing Virginia POA Rules
Discovery by third parties of the acts of an agent
Anti-Casey gift rules
Copyright 2009 by Oast & Hook10
Concerns Expressed About the UPOAA
It is a long (i.e. 22 pages) and complex law Answer: The substance of the bill is contained in
the first 8 pages. The balance of the bill contains statutory definitions of authority and the statutory form POA. The UPOAA primarily provides default rules where the POA is silent.
It is not wise to provide the public with a form POA Answer: Form powers of attorney are already
easily available to the public. The UPOAA provides a readily recognizable form for consumers who wish to use a form.
Copyright 2009 by Oast & Hook11
Article One
Modern definitions (i.e. “agent” and “incapacity”)
Durability is default Rule Execution by principal or in his
presence by another at his direction. Encourages portability by recognizing
POAs created under the laws of other states
Copyright 2009 by Oast & Hook12
Article One Continued
Recognizes a photocopy or electronically transmitted copy
Permits nomination of a guardian Authorizes immediately effective (default
rule) and springing POAs Provides default rules for the termination of
the POA or agent’s authority Provides default rules for co-agents and
successor agents
Copyright 2009 by Oast & Hook13
Article One Continued
Establishes a default rule providing compensation for agent
Establishes the time at which the agency relationship and imposition of fiduciary duties commences
Defines mandatory and default duties for agents
Authorizes exoneration of agent
Copyright 2009 by Oast & Hook14
Article One Continued
Broad standing to seek judicial relief Imposes liability on agents for misuse
of POA Authorizes an agent to resign Protects third parties for “good faith”
acceptance of acknowledged POA Imposes Liability for Refusal to accept
acknowledged POA
Copyright 2009 by Oast & Hook15
Article One Continued
Where the UPOAA is silent, the common law is retained.What authority a principal can not
delegate to an agentCapacity of an agentAgent’s liability and duties to third partiesPrincipal’s duties to the agentActual and apparent authorityRules of construction
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Article Two Defines the authority that must be expressly
grantedCreate amend, revoke or terminate a
trustMake a giftCreate or change rights of survivorshipDelegate authority granted by POAExercise fiduciary powers that the
principal has authority to delegate
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Article Two Continued
Permits incorporation of various powers by reference
Defines incidental authority that accompanies all grants of authority
Provides modern definitions of various grants of authority
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Defined AuthorityReal Property Tangible Personal
PropertyStocks and Bonds
Commodities and Options
Banks and Financial Institutions
Operation of Entity or Business
Insurance and Annuities
Estates, Trusts, and Beneficial Interests
Claims and Litigation
Personal & Family Maintenance
Benefits from Government Programs
Retirement Plans
Taxes Gifts
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Article Three
Statutory Form Power of Attorney with “plain English” set of instructions for the agent
Form Agent Certification
Copyright 2009 by Oast & Hook20
Article Four
Miscellaneous provisions UPOAA applies to existing POAs Does not affect any action taken by an
agent or third party prior to enactment
Copyright 2009 by Oast & Hook21
Recommended Amendments Expressly eliminate the delivery
requirement Expressly include disclaimers and
augmented estate elections as “hot powers”
UPOAA will not apply to designations of persons to make burial arrangements
Include UPOAA §401 Effective date July 1, 2010
Copyright 2009 by Oast & Hook22
Status of UPOAA
Enacted in 2009 with a re-enactment provision
Requires Enactment by 2010 session of General Assembly to be effective
Enactment supported by the Virginia Bar Association, Virginia Bankers Association, FPA and AARP
Contact your member of General Assembly to promote enactment
Copyright 2009 by Oast & Hook23
Where Can You Learn More? Virginia Legislative Information Service – SB 855
2009 Session Uniform Law Commission Website -
http://www.nccusl.org/Update/ AARP Website -
http://www.aarp.org/research/legal/legalrights/2008_17_poa.html
http://www.oasthook.com/legal_info.php
Copyright 2009 by Oast & Hook24
Attorneys and Counselors at LawOffices in Elizabeth City, Portsmouth, and Virginia BeachTel: 757-399-7506 | Tel: 252-722-2890 | Fax: 757-397-
1267 Please visit our web site at www.oasthook.com
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