Power of Attorney – Considerations

There are many reasons to create a Power of Attorney, which is, in effect an agreement outlining the relationship between a principal and an agent where the agent agrees to act on the principal’s behalf.

Under general agency principals, an agent can be anyone who acts:

1)  On behalf of and be subject to the control of a principal;

2)  Solely with the authority conferred upon it by the principal;

3)  With due care and diligence;

4)  Only in the principal’s interest and not his or hew own interest;

5)  And is accountable for all funds collected or distributed on the principal’s behalf.

An agent’s duties in Virginia can be found here.

For purposes of a power of attorney, however, the principal should take extra care that the agent is trustworthy and reliable. This is especially true for older people, where financial abuse is showing annual losses of $2.9 billion for those one in every six adults over age 65 who have experienced such abuse, according to a MetLife study conducted in 2011.

Significant elder abuse cases lead to the establishment of the Elder Justice Act in 2010, which is the first Federal act to address elder abuse specifically.  The law’s purpose is to develop and implement “strategies to decrease the likelihood of elder abuse, neglect, and exploitation.” It is part of the the Patient Protection and Affordable Care Act.

The purpose and scope of a Power of Attorney document should be carefully constructed to protect the principal and her or his interests. Indeed, depending on the party’s needs, an important feature of a well-crafted Power of Attorney may be retaining the right for the principal to act or his own behalf – providing some measure of control for the principal.

If you have any questions about preparing or signing a power of attorney, please call Gayton Law at 703-351-5071 to schedule an appointment.



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