Removing an Agent Under a Power of Attorney in Virginia: What You Need to Know
A power of attorney (POA) is an important estate planning document that allows one person, known as the principal, to authorize another person, known as the agent, to manage financial matters or take other authorized actions on their behalf. When properly used, this arrangement can help individuals manage their affairs and prepare for future incapacity.
However, problems can arise when an agent misuses their authority, fails to act in the principal’s best interests or becomes unable to fulfill their responsibilities.
In these situations, removing an agent under a power of attorney may be necessary to protect the principal and their assets.
Virginia law provides several ways to terminate an agent’s authority, depending on the principal’s capacity, the terms of the document and the circumstances involved.
When Should You Consider Removing an Agent?
An agent under a power of attorney is generally expected to act in accordance with the power of attorney and the principal’s interests.
Concerns may arise when an agent under a power of attorney engages in conduct such as:
- Using the principal’s money or property for personal benefit without proper authorization.
- Misappropriating the principal’s assets.
- Making financial decisions that conflict with the principal’s interests.
- Failing to maintain records or provide required information about financial transactions.
- Mismanaging assets or neglecting responsibilities under the power of attorney.
- Exploiting the principal’s vulnerability or exerting improper pressure over financial decisions, including situations involving elder financial exploitation.
- Refusing to provide accounting information when required under Virginia law and/or the terms of the power of attorney.
- Doing things the document does not give them permission to do.
These circumstances may justify reviewing the agent’s conduct and exploring available legal remedies. Under Virginia law, an agent has specific duties, and violations may expose the agent to legal liability.
Revoking a Power of Attorney in Virginia
When the principal has the capacity to revoke the agent’s authority, revocation is often the most direct option. Under Virginia Code § 64.2-1608, a principal may revoke a power of attorney or the authority granted to an agent.
The principal should review the existing power of attorney document and follow any applicable revocation requirements. Creating a written revocation can help establish a clear record of the decision. The principal should also provide notice of the revocation to the former agent and relevant financial institutions or other third parties that may rely on the document. The power of attorney document may contain specific requirements about the provision of notice to the former agent of the revocation of the agent’s authority.
Depending on the circumstances, the principal may also wish to execute a new power of attorney naming a different agent. Simply signing a new document does not necessarily revoke an earlier power of attorney, so the revocation language should be reviewed carefully.
What If the Principal Lacks Capacity to Revoke the Agent’s Authority?
Removing an agent can become more complicated when the principal is no longer capable of making or communicating an informed decision to revoke the power of attorney.
Just because a principal loses capacity does not necessarily terminate the power of attorney. In Virginia, a power of attorney is durable, meaning it remains in effect after the principal becomes incapacitated, unless the power of attorney expressly provides that it is terminated by the incapacity of the principal. Virginia Code § 64.2-1602.
In these circumstances, an interested person may be able to seek judicial intervention. Virginia Code § 64.2-1614 allows certain individuals to petition a court to interpret a power of attorney, review an agent’s conduct and grant appropriate relief.
Depending on the circumstances, eligible petitioners may need to include the principal’s spouse, parents, descendants, certain adult relatives, a guardian or conservator, a person authorized to make health care decisions for the principal and others who meet the statute’s requirements.
In such a proceeding, the court may review the agent’s conduct and determine what relief is appropriate. Depending on the facts and applicable law, available remedies may include limiting, suspending or terminating the agent’s authority, as well as addressing alleged breaches of duty.
Virginia Code § 64.2-1614(E) provides: “In a judicial proceeding under this chapter, if the court finds that the agent breached his fiduciary duty in violation of the provisions of this chapter, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any person who petitions the court for relief under subdivisions A 1 through 8, to be paid by the agent found in violation.”
Importantly, a family member does not automatically have the authority to remove an agent simply because they disagree with the agent’s decisions. The right to seek court intervention depends on statutory eligibility and the circumstances of the case.
What Evidence May Be Needed in Such a Proceeding?
When misconduct is suspected, documenting the relevant facts can be an important first step.
Useful records may include bank statements, transaction histories, copies of the power of attorney, correspondence, financial records and communications concerning the principal’s care, assets or finances.
An attorney can help determine which evidence is relevant, whether additional records should be requested and what legal proceedings may be appropriate. In some cases, the objective may extend beyond removing the agent to recovering misappropriated assets or holding the agent accountable for a breach of fiduciary duty.
Protecting Your Loved One’s Interests
Removing an agent under a power of attorney in Virginia requires careful consideration of the principal’s rights, the document’s terms and the applicable legal procedures. While revocation may be straightforward when the principal has the necessary capacity, situations involving suspected breach of duty or the principal’s incapacity can require court involvement.
If you believe an agent is misusing a power of attorney or placing a loved one’s finances at risk, an experienced Virginia estate litigation lawyer can help you evaluate your options and determine the appropriate next steps.
About Our Estate Litigation Team
When an agent under a power of attorney oversteps their authority or stops acting in the principal’s interests, families need answers quickly, and the legal questions can be complex. Whiteford’s Estates, Trusts, & Fiduciary Litigation Practice Team in Richmond, Virginia, helps principals, family members, executors, trustees, heirs and beneficiaries address these disputes.
Our attorneys handle power of attorney disputes and petitions for judicial review of an agent’s conduct; guardianship and conservatorship proceedings; will contests and trust challenges; breach of fiduciary duty claims against executors and trustees; and challenges to beneficiary, payable-on-death and transfer-on-death designations.
Brett C. Herbert is a partner in Whiteford’s Richmond, Virginia, office. His practice centers on contested estate and trust matters—will contests, trust challenges and breach of fiduciary duty claims against executors and trustees—along with partition matters and guardianship and conservatorship proceedings, both routine and contested. Reach him at BHerbert@whitefordlaw.com or (804) 977-1242.
Gregory S. Bean is a partner in Whiteford’s Richmond and Virginia Beach, Virginia offices. He represents executors, trustees, heirs and beneficiaries in will contests, trust challenges and fiduciary misconduct claims, and his practice extends to will and trust interpretation, power of attorney disputes and guardianship and conservatorship matters. Reach him at GBean@whitefordlaw.com or (804) 977-1241.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.