Common Estate Planning Documents in Virginia

Stephen CampbellEstate Planning

Meeting with an estate planning attorney at Waltrip & Campbell, P.C. to discuss your unique situation will provide you with peace-of-mind knowing that your affairs will be taken care of regardless of what life throws at you.

Estate planning is just as much about planning for the remainder of your life as it is planning for your family members after your death.  There are several common estate planning documents that may be used in your estate plan.

Last Will and Testament

A will is defined as the “legal declaration of a person’s mind as to the manner in which he would have property or estate disposed of after his death; the written instrument legally executed, by which a man makes disposition of his estate, to take effect after his death.” There are numerous avenues in Virginia to transfer property without a will, however a will should be executed as a ‘catch-all’ in the event new property/assets are obtained. A will would be used as part of a comprehensive estate plan in order to reduce or avoid federal and state estate taxes.

As a parent of a minor child, Virginia Code authorizes every parent to appoint a guardian for the person of his or her minor child by will.

 

Power of Attorney

A power of attorney creates an agency relationship between the grantor of the power (known as the principal) and the grantee (known as the agent). A power of attorney is often abbreviated POA (power of attorney) or DPOA (durable power of attorney). A durable power of attorney is one of the most powerful documents one can execute, as it gives another (agent) the power to act on behalf of the principal in almost every way that the principal can act for themselves. Because there is such an opportunity for fraud or mismanagement, it is important to consult with an attorney to have your power of attorney drafted. There are numerous types of powers of attorney and only an experienced attorney can advise you on what exactly you need.

A power of attorney that survives (does not terminate) upon the incapacitation of the principal is a durable power of attorney. The default rule in Virginia now states that a power of attorney created after the enactment of the Uniform Power of Attorney Act is durable (survives principal’s incapacity) unless it states otherwise.

A non-durable power of attorney is one that terminates upon the incapacitation of the principal.

A ‘springing’ power of attorney is a document where the principal grants the agent power to act of his/her behalf after the principal suffers incapacity or upon the occurrence of a future event or contingency. Think of it as the power of attorney ‘springs’ into existence upon the occurrence of an event (often incapacity of the principal).

A general power of attorney usually contains a phrase similar to the following, “do all things which the principal could do acting for myself.”

A limited power of attorney restricts the powers to certain activities or transactions.

When does a power of attorney terminate?

  • when the principal dies;
  • if a non-durable power of attorney, when the principal becomes incapacitated;
  • when the power of attorney says so;
  • when the principal revokes it;
  • when the purpose of the power of attorney is accomplished;
  • when the agent dies, resigns, or becomes incapacitated and there is no successor/alternate agent;
  • when an action for divorce, annulment, separate maintenance, custody or visitation is filed    between the agent and the principal, or the parties are legally separated. (this is the default rule and may be modified by the power of attorney)

 

Advance Medical Directive

In Virginia, an Advance Medical Directive expresses the declarant’s intention about providing, withholding, or withdrawing life-prolonging procedures in the event the declarant is diagnosed as having a terminal condition.

 

Living Will/Health care power of attorney

This is a document where the principal appoints an agent to make health care decisions for the principal if the principal is thereafter determined to be incapable for making an informed decision about medical conditions and treatment options. This is not limited to terminal conditions and life-prolonging procedures.

 

HIPAA Release

HIPAA is short for Health Insurance Portability and Accountability Act and in its most practical sense, protects disclosure of health information by others.

 

Do Not Resuscitate Order

A Durable Do Not Resuscitate Order is an order which is issued by a Virginia licensed physician with the patient’s consent, that allows emergency medical services personnel and licensed health care providers to withhold CPR from a particular patient in the event of cardiac or respiratory arrest. This is not something an attorney can draft.

 

Trusts

There are numerous different trusts that are available in Virginia. Some of the benefits of using a trust in estate planning is to avoid probate, manage assets during life and after death, tax savings, ease of administration of out-of-state real estate, lower cost of trusts for minors, control and privacy.

 

Contact the estate planning attorneys at Waltrip & Campbell, P.C. for a consultation.