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Obtaining Power of Attorney for an Incapacitated Person

Obtaining Power of Attorney for an Incapacitated Person

A sudden illness, accident, or stroke can leave you unable to make decisions—but without a Power of Attorney (POA) in place, no one can automatically step in to help.

Bills go unpaid, medical care gets delayed, and families face legal battles just to gain control of the situation.

At Commonwealth Life & Legacy Counsel, we help families in Virginia avoid these unnecessary hardships. A POA ensures your wishes are honored if you’re ever unable to speak for yourself.

In this post, we’ll explain why this document is essential and what happens if you don’t have one before incapacity strikes.

No POA in Virginia After Incapacity

If a person loses the ability to make decisions and hasn’t signed a Power of Attorney, Virginia law does not allow them to grant one retroactively.

A POA requires mental capacity at the time of signing—meaning the person must understand what they’re doing and agree to it voluntarily.

Without it, families are left in a difficult position:

  • Bills and expenses go unpaid – Banks won’t give access to accounts without proper legal authority.
  • Family disagreements may arise – Loved ones may have different opinions about medical care and finances.
  • Court intervention is required – A family member must go through the legal process of being appointed guardianship or conservatorship, which can take months and cost thousands of dollars in legal fees.

Thankfully, Virginia law defaults to durable POAs, meaning they remain effective even after incapacity—but only if one exists beforehand. Otherwise, families must turn to the court for help.

Virginia’s Guardianship Process

When no POA is in place, the court must step in to appoint someone to make decisions for the incapacitated person. This process can be long, expensive, and emotionally taxing for everyone involved.

Two Types of Court-Appointed Roles

Virginia law provides for two separate appointments:

  • Guardian of the Person – Handles medical, living arrangements, and personal care decisions.
  • Conservator of the Estate – Manages finances, property, and legal matters.

The Legal Process Step-by-Step

To obtain guardianship or conservatorship, a family member (or another interested party) must:

  1. File a petition with the Circuit Court.
  2. Provide evidence of incapacity, often requiring medical evaluations.
  3. Attend a court hearing, where the judge may hear testimony from family, doctors, and other involved parties.
  4. Receive a court ruling, where the judge appoints a guardian/conservator.

This process can be lengthy and costly—not to mention the emotional toll it takes on families already dealing with a loved one’s incapacity.

Why a Durable Power of Attorney Is the Best Option

A Durable Power of Attorney is a simple yet powerful tool that avoids the guardianship process entirely. It allows you to choose someone you trust to handle your affairs if you become incapacitated.

Here’s why a Durable POA is the best choice:

  • Avoids court involvement – Your chosen agent can step in immediately.
  • Prevents family disputes – Your wishes are clear, reducing confusion and conflict.
  • Protects financial stability – Bills are paid, investments are managed, and property is maintained.

Requirements For A Legally Binding POA in Virginia

To ensure your POA holds up legally, it must:

  • Be clearly written – Vague language can lead to disputes or rejection by banks and institutions.
  • Be properly signed and notarized – While Virginia law doesn’t always require notarization, it’s highly recommended to prevent challenges.
  • Comply with the Uniform Power of Attorney Act – Virginia follows this law, ensuring POAs are valid across state lines.

Because of its importance, a POA should always be drafted by an experienced attorney. Generic online forms can lead to confusion and unintended consequences, putting your assets and medical care at risk.

Limited Alternatives for Specific Situations

Virginia does provide some narrowly focused POA forms, but these are not substitutes for a comprehensive Durable POA:

  • Tax Matters – Form PAR 101 (Virginia Department of Taxation)
  • DMV Transactions – Form VSA 70 (Virginia Department of Motor Vehicles)

These forms are very limited in scope. They won’t help if you need someone to handle your medical care, pay your mortgage, or access investment accounts. If complete protection is your goal, a comprehensive POA is the only way to go.

Types of Power of Attorney in Virginia and When to Use Them

Not all POAs are the same. Choosing the right one depends on your needs.

Durable Power of Attorney

This is the most common and flexible option. It remains in effect even if you lose capacity, allowing your agent to make financial and legal decisions on your behalf.

General Power of Attorney

Grants broad authority but is not durable, meaning it becomes void if you become incapacitated. It is often used for temporary situations, like when someone is overseas.

Limited (Special) Power of Attorney

Gives authority for specific tasks—such as selling a property or handling a single business transaction. It expires once the task is complete.

Springing Power of Attorney

This type of POA only becomes active if a triggering event occurs—usually when a doctor certifies incapacity. While it sounds appealing, delays in obtaining medical proof can create problems when immediate action is needed.

Healthcare Power of Attorney (Advance Medical Directive)

Allows your chosen agent to make medical decisions on your behalf if you cannot communicate. This is a separate document from a financial POA, but it is just as essential.

Financial Power of Attorney

Strictly covers financial matters—banking, real estate, taxes, and business transactions.

Most people combine a Durable POA with a Healthcare POA to ensure full protection.

Planning For Power of Attorney in Virginia? Contact Commonwealth Life & Legacy Counsel

Life can change in an instant, but you don’t have to leave your loved ones unprepared. A Durable Power of Attorney ensures that someone you trust is ready to step in and handle critical decisions when you can’t.

At Commonwealth Life & Legacy Counsel, we’re here to help you create a comprehensive estate plan that protects your interests and gives your family peace of mind.

Don’t wait until it’s too late—call us today at (434) 589-2958 in Central Virginia or (804) 598-1348 in Powhatan to schedule your consultation. Take control now for yourself and those you care about most.