• WILLS

• THE GENERAL POWER OF ATTORNEY

• THE ADVANCE MEDICAL DIRECTIVE
  

WILLS

Do You Need a Will? 
What happens if you die without a will? You should consider what happens if you die without a will in order to decide whether you need a will. 

The property of a person who dies without a will is distributed according to current Virginia law (called the “intestate" laws) in the following order:

• All of your property will usually go to your spouse (husband or wife) unless you are survived by any of your children (or their descendants) who are not your surviving spouse's children. In that situation, your surviving spouse would receive only one-third of your "estate" (the property you own at your death); and your children, or their descendants, would receive two-thirds. 
  

• If your spouse does not outlive you, all of your estate will go to your children or their descendants. 
  

• If you have no surviving spouse, children, or descendants of children, your estate will go to your mother and/or father if they outlive you. 
  

• More distant relatives may receive your estate if none of your immediate family survives you. 

Remember that the intestate law can be changed in the future. The only way to be sure that your property will be distributed to the person(s) you choose is to have a will prepared. 

Other Reasons for Having a Will:

• You may leave property to a friend or charity who would otherwise receive nothing under intestate law.
  

• You may leave specific property to persons you choose (my collection of baseball cards to Aunt Susie).
  

• A will often makes the distribution of your estate quicker and easier, and that makes it 
  easier for your family.
  

• If a minor inherits property from an intestate estate, a court will have to appoint a 
  guardian to manage the property. This is an expensive and very inconvenient process. A 
  properly drafted will avoids this. 
  

• You can name the person you want to handle the distribution of your property (your 
  executor) in your will; otherwise a court will determine who handles your estate. 

Having Your Will Prepared 
Your will should be prepared by a lawyer because a lawyer should know how to write it so that it will be clear what you want done with your property. Even though handwritten wills are valid in Virginia, there are several legal requirements that must be followed before it will be valid, including: 

• The will must be entirely in the handwriting of the testator. 
  

• In order to probate the will, two disinterested witnesses must be willing to verify the testator's handwriting 

You should consider the following things before you meet with an attorney about your 
will: 

• Consider who should receive your property at your death (your "beneficiaries"). Do you want to leave all your property to one person, or do you want it divided? 
  

• Do you want to leave certain items of property to specified people (my baseball cards to Aunt Susie)? 
  

• Who should receive your property if one of your beneficiaries dies before you? 
  

• Who do you want to serve as your executor? The executor's duties will include collecting your property, paying any debts, and distributing your property according to your will. The person you may name should be capable of handling these duties and should be someone you trust to carry out your wishes. 
  

• It is a good idea to name an alternate executor in case your executor is unable to serve 

Limits on What a Will Can Do 

• A surviving spouse has a right to claim at least one-third (one-half, if there are no surviving children) of the estate. If the will gives the surviving spouse less than her share, she can claim her share anyway. 
  

• Property that is owned jointly with the “right of survivorship” is automatically owned by the surviving joint owner, regardless of the will. Typically, this includes some joint bank accounts and jointly-owned real estate.
  

• Proceeds from a life insurance policy will not be distributed under the will and are not required to be used to pay for funeral expenses unless your estate is named as the beneficiary of the policy.

Changing or Revoking the Will 
You can change or revoke your will because it is not effective until your death. Do not write on your will after if has been executed (signed by you and witnesses) because that may revoke it. Your lawyer should make changes for you. You should review your will periodically to determine if you want to make any changes. 

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THE GENERAL POWER OF ATTORNEY

A power of attorney is a written document that authorizes one person to act on behalf of another. The person granting the power of attorney is the principal and the person who is authorized to act on behalf of the principal is the attorney-in-fact or agent. The principal must be able to understand the nature and consequences of the power of attorney in order for it to be valid. This determination is made at the time the principal signs it. 

Why should you sign a power of attorney? 

• If you ever become disabled and unable to handle you own affairs and you had not signed a general power of attorney, someone may have to petition the Circuit Court to have a guardian appointed for you. Guardianship should be avoided whenever possible. 
  

• A guardianship proceeding can be expensive, unpleasant and time-consuming process for you, your family, and your friends. 
  

• It is expensive because you probably will have to hire an attorney to file the guardianship petition. 
  

• It can be unpleasant because a hearing must be held in open court, and it can be time-consuming because it takes time to obtain a court date for the hearing. 
  

• After the hearing, the Court will decide who should be your guardian and it may not be someone you would want handling your affairs. 
  

• A power of attorney allows you to appoint someone you know and trust to handle your personal affairs, if you ever become unable to do so yourself. If you should become incapacitated, your agent could take care of your personal affairs without delay. 

Your General Power of Attorney will take effect on the date you sign it. This does not mean you will lose the power to take care of your own affairs and make your own decisions. The agent you name must act only in your best interests and, as long as you are competent, the agent should act only when directed by you. You should be able to trust the agent not to use your power of attorney until it is necessary. 

Types of Powers of Attorney: 

Durable: This means that the power of attorney will remain in effect if the principal later became mentally incapacitated. Virginia law requires language indicating that the principal intends for the power of attorney to remain in effect upon the principal's disability or the power of attorney would automatically terminate. Almost all powers of attorney done by lawyers are durable.

Limited: A limited power of attorney gives the agent authority to do only certain specific things spelled out in the document. 

General: The general power of attorney gives the agent broad power to do almost anything for the principal. This type of power of attorney is used to plan for possible future disability.

Springing: The power of attorney is effective as soon as it is signed unless it contains language stating that it will not go into effect until the principal is unable to handle his own affairs. A power of attorney with this language is called a springing power of attorney. This type of power of attorney is not recommended by many lawyers because it may not be accepted by a bank without proof that the principal is incapacitated. 

Preparing a Power of Attorney 
A lawyer should prepare the power of attorney for you because if a lawyer does not prepare it, it may not be accepted by banks and other institutions where the agent tries to use it. A lawyer should be knowledgeable about what language should be in the document in order to give the agent the authority she needs.

The Agent 
You can appoint any competent adult as your agent. It is a good idea to name more than one agent in case your agent is unable to assist you when the time comes. You can name co-agents or a successor agent. You can appoint an agent who lives outside Virginia, however it may be more convenient if your agent lives near you. Although a Power of Attorney can be revoked, you should avoid problems by only appointing someone you trust as your agent. 

After the Power of Attorney is Signed: 

• It can be revoked if you are still competent. If you are no longer competent, a guardian can be appointed and the power of attorney revoked in that proceeding.
  

• Be sure that your agent(s) is willing to use the General Power of Attorney if necessary. 
  Instruct your agent(s) not to use the General Power of Attorney while you are competent, unless you ask her to do so.
  

• You need to make sure your agent(s) knows where your General Power of Attorney is kept, so he will have access to it if you become incapacitated. If you keep it in your safety deposit box, make sure that your agent will be able to get into the box if need be.
  

• You may want to let your agent keep the General Power of Attorney in her possession.
  

• Your agent should always keep at least one original copy of the General Power of Attorney (if he is using it). 
  

• Inform all members of your family and close friends you have executed this document and tell them who you have named as agent(s).
  

• Tell your agent that if she uses your General Power of Attorney and must sign for you, she should sign as follows: (Your name) by (Agent's name), agent for (your name). It will then be clear that they are signing on your behalf only.

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THE ADVANCE MEDICAL DIRECTIVE

The Advance Medical Directive ("the Directive") has two parts. The first part is a declaration that you want to die a natural death. This used to be called a Natural Death Act Declaration or a Living Will. In the second part of the Directive, you designate someone to make medical decisions for you if you are unable to make your own medical decisions. This used to be called a Health Care Power of Attorney. 

"Being Kept Alive by a Machine" 
Many of us have had a friend or relative who became very ill and was in the hospital being kept alive by a "machine". That person was still alive only because a medical machine was artificially feeding them, breathing for them or performing some other bodily function. 

The first part of your Directive is your declaration that you do not want to be kept alive artificially by medical technology or machines. You declare that, if there is no hope that you are going to recover, you want the machines disconnected so that you might die naturally. 

This declaration takes effect only if you have a "terminal condition". Terminal condition means that: 

• you have an illness from which your doctor determines there can be no recovery, and 
  

• death is "imminent" (likely to come quickly), or 
  

• you are in a "persistent vegetative state" (permanent state of unconsciousness). 

Your Directive states that "life-prolonging procedures" are to be withheld or withdrawn if you are in a terminal condition. Life-prolonging procedure means any medical procedure serving only to delay death. This includes artificial feeding (called nutrition and hydration).

You can also state in your Directive that certain life-prolonging procedures, such as nutrition and hydration, not be withheld or withdrawn, even if you have a terminal condition. The Directive does not prevent the use of medication or medical procedures to reduce pain. 

Why You Should Sign an Advance Medical Directive 
In many cases, you would no longer be able to communicate after being diagnosed with a terminal medical condition, so you would not be able to express your wishes concerning life-prolonging procedures. Therefore, you should consider making this Directive now. 

It's not as crucial as a general power of attorney because under Virginia law, family members are appointed to make this decision in the absence of an Advance Medical Directive. However, family members will have an easier time making this difficult decision if you have already expressed your wishes in a directive.

Appointing Someone to Make Health Care Decisions for You 
The second function of the Advance Medical Directive is to appoint someone to make medical decisions for you. Unlike the power of attorney, this does not take effect unless you cannot make your own decisions. 

This used to be called a Health Care Power of Attorney because you are appointing an agent, just as you do with a general power of attorney, but the agent is appointed only to make health care decisions. 

The agent you appoint under the Directive does not have any authority to make medical decisions on your behalf until your doctor determines that you cannot make your own decisions. 

After the Advance Medical Directive is Signed 

• The directive must be signed in front of two witnesses that are not blood relatives. 
  

• Be sure that your agent(s) is willing to use the Advance Medical Directive if necessary. 
  

• Give a copy of the Advance Medical Directive to your family doctor and he should make it a part of your medical record. 
  

• You need to make sure your agent(s) know where your Advance Medical Directive is kept, so they will have access to it if you become incapacitated. If you keep it in your safety deposit box, make sure that your agent will be able to get into the box if need be. You may want to let your agent keep the Advance Medical Directive in her possession. 
  

• Inform all members of your family and close friends you have signed this document and tell them who you have named as agent(s). 

This information has been provided by Jay W. Speer, Attorney at Law, Virginia Poverty Law Center. 

James W. Speer
Virginia Poverty Law Center
201 West Broad Street, Suite 302
Richmond, Virginia
804-782-9430
jay@vplc.org

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