Someone Has Power of Attorney Over Your Family Member: Can You Request Information?
An important part of lifetime planning is the power of attorney. A power of attorney gives one or more persons the power to act on the principal’s behalf as their agent. The power may be limited to a particular activity, such as closing on the sale of a home, or be more general in its application. This document may take effect immediately, or only upon the occurrence of a future event, usually a determination that the individual is unable to act for themselves due to mental or physical disability. The latter is called a “springing” power of attorney.
The person named in a power of attorney to act on someone’s behalf is commonly referred to as an “agent” or “attorney-in-fact.” With a valid power of attorney, the agent can take any action permitted in the document. Often the agent must present the actual document to invoke the power. For example, if another person is acting on your behalf to sell an automobile, the motor vehicles department generally will require that the power of attorney be presented before the agent’s authority to sign the title will be honored. Similarly, the agent must present the power of attorney to a broker or banker to affect the sale of securities or opening and closing bank accounts.
“But with great power comes great responsibility.” A simple fact regarding fiduciaries, such as agents under powers of attorney, is that they must account for all transactions made on behalf of the principal. This is because the agent has a fiduciary relationship with the principal which includes the duty to: 1) exercise the powers for the benefit of the principal; 2) keep separate the assets of the principal from those of the agent; 3) exercise reasonable caution and prudence; and 4) keep a full and accurate record of all actions, receipts, and disbursements on behalf of the principal. Unfortunately, for the agent and the principal they are acting on behalf of, agents often fail to heed these duties – especially the obligation to keep full and accurate records.
So, who can request such information/records from the agent? Pursuant to Virginia Code § 64.2-1612, a person authorized to make healthcare decisions, a spouse, a parent, a descendant, a brother, a sister, a niece, a nephew, a beneficiary, and a caregiver are all individuals that can make reasonable requests for the agent to disclose 1) the extent to which they chose to act and 2) the actions taken on behalf of the principal. A response to which must be provided within 30 days of receipt of the request. A more thorough report, including receipts, disbursements, or transactions conducted on behalf of the principal, must be disclosed when requested by the principal, a guardian, a conservator, or another fiduciary acting on behalf of the principal.
In this regard, there is oversight over the actions of the agent since they must be prepared to account for their actions at any time. Additionally, individuals that are not the agent under power of attorney can rest assured that certain information can be obtained from the agent if/when they feel it is necessary.
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Rachel H. Snead
757-399-7506 | 252-722-2890
Rachel Snead is an associate attorney with Hook Law practicing primarily in the areas of estate planning, estate and trust administration, guardianship and conservatorships, dispute resolution, and fiduciary litigation. To date, she has litigated and settled over 50 matters. She enjoys the diversity of work that elder law provides, and the challenges presented by litigation just as much as she enjoys helping people with creating their unique estate plan and navigating the complex administration of estates and trusts.
A graduate of the University of Richmond School of Law and Virginia Commonwealth University, Rachel is admitted to the Virginia State Bar. She is also a member of the Virginia Bar Association (VBA), the Hampton Roads Estate Planning Council, the Virginia Academy of Elder Law Attorneys (VAELA), and the Virginia Trial Lawyers Association (VTLA).
In 2022 she became a licensed health and life insurance agent and attended the prestigious National Trial Advocacy College at the University of Virginia School of Law where she received intensive hands-on advocacy training.
She has taught multiple continuing legal education courses including, “Getting Started in Elder Law,” “Virginia Probate from Start to Finish,” and “Guardianships and Assisted Decision-Making in Virginia,” and has facilitated sessions for VAELA including “Medicaid & SSI When a Client Owns a Business.” She has also been published on various platforms including T & E Magazine, WealthManagement.com and Age in Action, a quarterly newsletter published by the Virginia Center on Aging and Virginia Department for Aging and Rehabilitative Services.
- Estate Planning
- Estate & Trust Administration
- Guardianships & Conservatorships
- Litigation & Dispute Resolution