3.11 Other Documents

• Library: Estate Planning in Virginia (Virginia CLE) (2018 Ed.)

3.11 OTHER DOCUMENTS

3.1101 Durable Powers of Attorney. Under common law, the power of an agent to act on behalf of his or her principal terminated when the principal became legally incapacitated, based on the legal concept that an agency relationship is consensual and that when one of the parties to the relationship could no longer give consent, the relationship terminated. In 1969, Virginia was one of the first states to adopt the Durable Power of Attorney Act, which permitted an individual to name a person as an attorney-in-fact under an instrument that provided that the attorney-in-fact's power would not terminate upon the principal's incapacity or disability. Now every state in the Union and the District of Columbia have adopted a durable power of attorney statute. In 2010, Virginia adopted the Uniform Power of Attorney Act (UPOAA) ⁸⁰ as the governing law for matters involving powers of attorney. It has become essential to suggest to clients during the estate planning process that they consider a durable power of attorney to provide for the possibility of their incapacity and to avoid the necessity of appointing a guardian in such event.

3.1102 Advance Medical Directives. In the 1970s, states began to adopt so-called "living will" statutes permitting an individual to sign a document that directed health providers to withhold or withdraw life-prolonging procedures if the individual was diagnosed with a terminal illness and death was imminent. In 1992, Virginia replaced its living will statute with a comprehensive statute dealing with advance medical directives, the appointment of agents to make health care decisions, and a procedure for determining who can make health care decisions for an individual...