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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