A springing power of attorney is a power of attorney that takes effect after the expiration of a specified time or after the occurrence or non-occurrence of a specified event. The event could be the issuance of a letter by a doctor that the principal has lost capacity or something similar. After such incapacitation the power is identical to a durable power, but cannot be invoked before the incapacity. The power has been created but lies dormant. It is brought to life on the happening of the specified event: it springs into effect at that time. If a springing power is used, care should be given to specifying exactly how and when the power springs into effect.
Virginia Power Attorney Without Capacity
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A power of attorney shall be signed by the principal or in the principal's conscious presence by another individual directed by the principal to sign the principal's name on the power of attorney.
In order to execute a durable power of attorney, a client has to have contractual capacity. Contractual capacity means that the person has the ability to understand the nature and effect of the act and the business being transacted.
A lawyer should write a general power of attorney for you because you want to be sure that the agent will be able to use it if it becomes necessary. Banks and other institutions may not accept a power of attorney that has not been prepared by a lawyer because it may not have the exact wording that is necessary.
If they do not have the mental or physical capacity to understand what they are signing, then you should not help them complete a power of attorney. You should get legal advice from an attorney licensed in Virginia. An attorney can help you get a court-appointed guardian or conservator for your parents.
A power of attorney is not required to be acknowledged before a notary public but the party's signature is deemed to be genuine if acknowledged before a notary public. Any power of attorney that is presented for recording with the Circuit Court must be acknowledged before a notary public or deputy clerk.
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A power of attorney is durable when the document is still legally recognized when the principal becomes incapacitated. Virginia law treats a power of attorney as durable unless it specifically says it is not.However, if the person indeed had the capacity to execute the DPOA at the time, the DPOA is valid. On this form is explained in the Uniform Power of Attorney Act located at W.Va. Code §39B-3-101, et seq.