Virginia law provides for a relatively quick and inexpensive method of obtaining information about actions taken by an agent under a power of attorney. This provision can be utilized by family members who have suspicions as to whether other family members or friends, who were appointed as agents under a power of attorney, acted properly.
Virginia Code Section 64.2-1612 (which is similar to the law in other states that have also adopted the Uniform Power of Attorney Act, as Virginia has), provides in general that unless a power of attorney states otherwise, an agent under a power of attorney must, on the request of certain family members and others that have a “good faith belief that the principal [the person who gave another authority to act on his behalf pursuant to the power of attorney] suffers an incapacity or, if deceased, suffered incapacity at the time the agent acted,” disclose to the requesting person the actions that the agent took on behalf of the principal within either the past five years, or the five years prior to the date of the death of the principal. Also, the agent is required to provide access to the inspection of records pertaining to any such actions taken by the agent. If the principal was deceased at the time of the request, then the request must be made within one year of his death.
This provision means that a person who suspects that an agent under a power of attorney acted improperly can issue a written request and receive potentially valuable information about the actions of the agent that will help the person assess whether there was any misconduct that could warrant legal action. Such a request can be made by a simple letter, and the expense of such is minimal. Moreover, there does not need to be any court involvement (unless the agent fails to comply with the request). Because this request is very easy to make, and could shed light on potential misconduct, it’s very common for estate litigation attorneys to issue such a request prior to litigation.
If the shoe is on the other foot, and you are acting as an agent under a power of attorney, it’s important that you keep detailed records of the actions that you have taken, and preserve them for at least five years. Virginia Code Section 64.2-612(B)(4) states that agents under a power of attorney must “keep a record of all receipts, disbursements, and transactions made on behalf of the principal.” I have seen countless instances of families that have gotten along fine for years and figured that “nothing could ever happen”, only to see a spat break out after a relative passed away, and suddenly family members are issuing these requests for information to the agent under the power of attorney, and the agent didn’t bother to keep adequate records because he just assumed that there’d never be any issues. The lesson here is that agents under a power of attorney need to be mindful of their legal obligations, and can’t simply act in ignorance in the belief that “nothing could ever happen.”
