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Agent Under Power of Attorney Not Providing Information? What You Can Do

In Virginia, when a person (the principal) signs a power of attorney (POA), they authorize an agent to act on their behalf. Transparency is essential. If an agent will not provide information, concerned loved ones must act promptly to protect the principal’s interests while respecting privacy and legal limits. Virginia law provides several avenues for requesting information relating to an agent’s actions under a Power of Attorney. Virginia law provides certain individuals the right to request an accounting of the agent’s actions. Understanding how a request can be made and what information can be requested is crucial for both agents and those concerned about the welfare of the principal.

The Agent’s Duties

An agent under a POA generally owes fiduciary duties to the principal, including a duty to keep a record of all receipts, disbursements, and transactions made on behalf of the principal. The agent must also act in good faith and only within the scope of authority granted in the power of attorney. If an agent refuses to provide reasonable information to those authorized to ask, that refusal can signal a potential breach or misunderstanding requiring prompt attention.

What Information Can Be Requested

What documents and information may be requested depends on the relationship of the person making the request to the principal. The principal themself, a guardian, a conservator, another fiduciary acting for the principal; or, if the principal has died, the personal representative of the principal's estate has the broadest authority. To those individuals, the agent must disclose all receipts (i.e., funds received for the principal’s benefit), disbursements (i.e., payments or transfers of the principal’s assets to others), or transactions conducted on behalf of the principal. The power of attorney itself may restrict this statutory right to request an accounting. The agent must provide the information within 30 days, unless the agent provides a writing or other record substantiating why additional time is needed, which gives the agent an additional 30 days.

Receipts could include Social Security payments, pensions, income, and returns on investments. Disbursements are generally of the most interest to ensure that the agent (i) is only making payments in accordance with the Power of Attorney and the agent’s duties, and (ii) is not making improper gifts to others or transfers to themselves. They may include withdrawals from bank accounts, transfers of investments, deeds for real estate, or transfers of personal property (like cars, jewelry, furniture, etc.).   

Otherwise, Virginia law provides that certain people with a good faith belief that the principal suffers an incapacity or, if deceased, suffered incapacity before they died, can request information regarding the extent to which the agent chose to act and the actions taken on behalf of the principal. The agent must disclose the information for the five years prior to the request or, if the principal is deceased, for the five years preceding the principal’s death. While this part of the law does not set forth what specific information and documents the agent must disclose, it likely includes the receipts, disbursements, and transactions described above. The same 30-day rule applies with respect to the timing of the response.

How To Make A Request

A request for information is sometimes called a demand for an “accounting” and should be in formal writing to the agent. An experienced POA/estate dispute lawyer can help you craft an appropriate request.  The letter itself can ask for information and documents described in the pertinent statute.

If the agent does not respond to the request, a second written request may be necessary. If these requests fail, authorized parties in Virginia may seek court involvement to review the agent's conduct.  This may include:
 

• Asking the Court to require the agent to account for their actions.
• Seeking an order compelling the agent to produce documents supporting their actions.
• Seeking the removal of the agent and the appointment of a guardian and/or conservator to protect the principal.
• Requesting suspension or restriction of the agent’s authority.
• Seeking compensation to the principal (sometimes called a surcharge) against the agent for proven breaches.
• Seeking injunctive relief to prevent further misuse of assets.
• Requesting reimbursement for costs and attorney’s fees in the event that the court finds that the agent breached their fiduciary duty

 
Once a lawsuit is filed, that opens the door for the parties to conduct formal discovery. The parties can engage in formal discovery in such a lawsuit to find out more information about the agent under the POA’s actions.

Principals with capacity can generally revoke a Power of Attorney at any time, and the principal may wish to do so promptly if they suspect the agent is acting improperly.

If you are facing an unresponsive agent under a power of attorney, consult an experienced Virginia attorney to assess your options and pursue appropriate remedies.
 
Gregory S. Bean is a partner at Whiteford, Taylor & Preston LLP and a member of the Estates, Trusts, & Fiduciary Litigation Practice Team. Greg can be reached at GBean@Whitefordlaw.com and (804) 977-1241.
 
Brett C. Herbert is a partner at Whiteford, Taylor & Preston LLP and a member of the Estates, Trusts, & Fiduciary Litigation Practice Team. Brett can be reached at BHerbert@whitefordlaw.com and (804) 977-1242.