Upoaa Power Point Presentation 20090510

The Virginia Uniform Power of Attorney Act

Andrew H. Hook, CELA, CFP®

Lisa V. Johnson, Esquire

Oast & Hook, P.C.Attorneys and Counselors at Law

Serving Virginia and North CarolinaTel: 757-399-7506 | Tel: 252-722-2890

Fax: 757-397-1267 www.oasthook.com

Copyright 2009 by Oast & Hook2

Why Do We Need a New POA Statute? There is a growing divergence among state POA

statutes.

Results from a 2002 national survey demonstrated the need for a comprehensive statute that would address the following:

Confirmation of activation of contingent powers

Revocation of spouse-agent’s authority upon dissolution or annulment of marriage to principal

Portability


Survey Results Continued…

Requirement that gifting authority to be expressly granted

Providing default standard for fiduciary duties Permitting principal to alter default fiduciary

standard Requirement of notice from agent when agent is no

longer willing or able to act Safeguards against abuse by an agent Remedies and sanctions for abuse by an agent Protection for reliance of third parties on a POA Remedies and sanctions for refusal of third parties

to honor a POA.


Why Do We Need a New POA Statute?

Modern Default Rules Preserve POAs as a low-cost,

flexible and private form of surrogate decision making


Encourages Acceptance

Provides broad protection for good faith acceptance or refusal of an acknowledged POA by third parties. Honesty in Fact Authority to request agent certification or

opinion of counsel Rejects imputed knowledge

Sanctions for unreasonable refusal to accept POA by third party (including Attorneys’ fees)


Provides Protection for Principals

Mandatory and default duties for agents

Liability for agent misconduct

Broad standing for judicial review

Requires express language for “hot powers”


Protection of Agents

Agent who acts with care, competence and diligence will not be liable solely because the agent

also benefits from the transaction or has a conflicting interest.


Assists in Drafting POA

Modern definitions of authority

Default Rules which can be customized

Incorporation of powers by reference

“Portability”

Statutory Short Form POA


Retains Popular Existing Virginia POA Rules

Discovery by third parties of the acts of an agent

Anti-Casey gift rules


Concerns Expressed About the UPOAA

It is a long (i.e. 22 pages) and complex law Answer: The substance of the bill is contained in

the first 8 pages. The balance of the bill contains statutory definitions of authority and the statutory form POA. The UPOAA primarily provides default rules where the POA is silent.

It is not wise to provide the public with a form POA Answer: Form powers of attorney are already

easily available to the public. The UPOAA provides a readily recognizable form for consumers who wish to use a form.


Article One

Modern definitions (i.e. “agent” and “incapacity”)

Durability is default Rule Execution by principal or in his

presence by another at his direction. Encourages portability by recognizing

POAs created under the laws of other states


Article One Continued

Recognizes a photocopy or electronically transmitted copy

Permits nomination of a guardian Authorizes immediately effective (default

rule) and springing POAs Provides default rules for the termination of

the POA or agent’s authority Provides default rules for co-agents and

successor agents



Establishes a default rule providing compensation for agent

Establishes the time at which the agency relationship and imposition of fiduciary duties commences

Defines mandatory and default duties for agents

Authorizes exoneration of agent



Broad standing to seek judicial relief Imposes liability on agents for misuse

of POA Authorizes an agent to resign Protects third parties for “good faith”

acceptance of acknowledged POA Imposes Liability for Refusal to accept

acknowledged POA



Where the UPOAA is silent, the common law is retained.What authority a principal can not

delegate to an agentCapacity of an agentAgent’s liability and duties to third partiesPrincipal’s duties to the agentActual and apparent authorityRules of construction


Article Two Defines the authority that must be expressly

grantedCreate amend, revoke or terminate a

trustMake a giftCreate or change rights of survivorshipDelegate authority granted by POAExercise fiduciary powers that the

principal has authority to delegate


Article Two Continued

Permits incorporation of various powers by reference

Defines incidental authority that accompanies all grants of authority

Provides modern definitions of various grants of authority


Defined AuthorityReal Property Tangible Personal

PropertyStocks and Bonds

Commodities and Options

Banks and Financial Institutions

Operation of Entity or Business

Insurance and Annuities

Estates, Trusts, and Beneficial Interests

Claims and Litigation

Personal & Family Maintenance

Benefits from Government Programs

Retirement Plans

Taxes Gifts


Article Three

Statutory Form Power of Attorney with “plain English” set of instructions for the agent

Form Agent Certification


Article Four

Miscellaneous provisions UPOAA applies to existing POAs Does not affect any action taken by an

agent or third party prior to enactment


Recommended Amendments Expressly eliminate the delivery

requirement Expressly include disclaimers and

augmented estate elections as “hot powers”

UPOAA will not apply to designations of persons to make burial arrangements

Include UPOAA §401 Effective date July 1, 2010


Status of UPOAA

Enacted in 2009 with a re-enactment provision

Requires Enactment by 2010 session of General Assembly to be effective

Enactment supported by the Virginia Bar Association, Virginia Bankers Association, FPA and AARP

Contact your member of General Assembly to promote enactment


Where Can You Learn More? Virginia Legislative Information Service – SB 855

2009 Session Uniform Law Commission Website -

http://www.nccusl.org/Update/ AARP Website -

http://www.aarp.org/research/legal/legalrights/2008_17_poa.html

http://www.oasthook.com/legal_info.php


Attorneys and Counselors at LawOffices in Elizabeth City, Portsmouth, and Virginia BeachTel: 757-399-7506 | Tel: 252-722-2890 | Fax: 757-397-

1267 Please visit our web site at www.oasthook.com

Estate Planning Asset Protection Planning Long-term Care Planning Veterans Benefits Financial Planning and

Advice regarding Investments, Insurance, Annuities, Reverse Mortgages, and Equity Lines

Tax Planning Guardianships and

Conservatorships Estate and Trust

Administration Special Needs Trusts Care Management

Services Business Planning and

Succession Planning

Upoaa Power Point Presentation 20090510

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