Is a durable power of attorney legal if not initialed in all places?
My wife's niece has gotten durable power of attorney over her mother and, the way it was written, my sister-in-law had to initial each section of it. If she did not initial one part, like over her money, but did initial the medical part, then is the whole durable power of attorney legal? And if so, what is the consequences for the daugther if it can be proven that she is abusing this durable power of attorney in the state of Virginia?
Expert Answer
It is risky business to hazard a guess about the legality of a document without seeing it"”especially a document relating to healthcare and financial directions in Virginia, which takes its powers of attorney and advance directives very seriously. However, some general information and specific resources should be helpful to you.
Virginia revised its law on advance directives, to take effect in April 2009. And as part of that fanfare, it has even declared an Advance Directives Day every April to raise awareness of the issues involved. In betweentime, the Virginia Hospital and Healthcare Association presents some good information about advance directives in the state"”along with sample forms that pass muster there, at www.vsb.org/docs/sections/health/Decide2009.PDF.
However, the new forms are optional, and financial and medical powers of attorney signed under the earlier law would still be valid as long as they meet other legal requirements.
Again, without looking, it seems a little puzzling that the financial and healthcare powers of attorney were contained in the same document, since Virginia specifies different requirements for finalizing them"”medical POAs require two witnesses, financial POAs need a notary, for example.
However, it is possible that both were included in a single document. And, as a general rule, as long as the document is clear about the meaning of initialing or not initialing a provision, those who complete them are free to pick and choose the clauses and powers they want to take effect.
Finally, all of this legal hair-splitting may not matter much. If you can prove that the daughter is not executing her duties as the agent for with the medical or financial power of attorney, you can have her removed and petition to have the court appoint another person to take over her duties. In deciding whether she is abusing or neglecting her duties, the court will be most swayed by whether she is acting in the best interests of her mother.
For advice on the specifics of mounting a legal challenge in your area, along with possible legal help in doing so, contact the local Area on Aging at www.n4a.org/about-n4a/?fa=aaa-title-VI.