Sleep Better at Night With Answers to Your Top Questions on Virginia Brain Injury Claims

Experiencing something as traumatic as an accident in Chesterfield County can leave your head spinning with questions and uncertainty. Get the answers you need fast in this FAQ series from Richmond brain injury attorney Kevin Mottley.

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  • How do I find out if a power of attorney is being misused?

    Not everyone has a right to find out how a person has been using a power of attorney document.  Only certain people have that right. 

    First, if you are someone who represents the person who gave the power of attorney (referred to as the “principal”), such as an agent under another power of attorney, a guardian, a conservator, or another fiduciary, or if the person who gave the power of attorney has died, if you are the personal representative (executor) or successor in interest under the person’s estate, then you may demand that the person who had the power of attorney (also known as the “agent” or the “attorney-in-fact”) disclose to you all receipts, disbursements, or transactions that the agent engaged in on behalf of the principal.  The attorney-in-fact has 30 days to respond.

    Second, if the principal is currently incapacitated, and you are someone who is a close relative, beneficiary or caregiver for the person, then you may demand that the agent disclose all transactions to you in which the agent has used the power of attorney to act on behalf of the principal.

    There are time limits applicable to these requests and to the period of time for which the agent must disclose receipts, so you will need to have an attorney review the statutes for you and explain your rights to you.

  • How do I remove a power of attorney (an attorney-in-fact)?

    If you are a person who is entitled to obtain information from  an agent (an attorney-in-fact) and the agent fails or refuses to give that information to you, this is a basis for filing a complaint in circuit court to remove the agent.

    In addition, if you are the principal, a close relative of the principal, someone entitled to make health care decisions for the principal, the principal’s caregiver, a guardian, conservator, representative of the estate of a deceased principal, a person who is asked to accept a power of attorney, or a beneficiary of a principal’s estate, then you may petition a circuit court to review the agent’s conduct and to grant appropriate relief.  If it be shown that the agent has breached his or her duties as attorney-in-fact, then the court may order the removal of the agent.

  • What is undue influence?

    To raise a presumption of undue influence of a testator in making a will, the evidence must show three things.  First, that the testator was “enfeebled in mind” when the will was executed.  Second, that someone benefitted by the will stood in a position of trust with respect to the testator or that the testator depended upon the person.  Third, that the testator had previously expressed an intention to make a contrary disposition of his or her property.

  • What are the grounds for contesting a will in Virginia?

    Grounds for contesting a will under Virginia law include the following:

    • the formal requirements for making a will under Virginia law were not performed properly, rendering the document invalid as a will,
    • the document was not made with “testamentary intent,” meaning that the document sought to be admitted to probate as the decedent’s will was not intended by the decedent to be his or her last will,
    • the person who made the will lacked testamentary capacity to make the will,
    • the person who made the will was the victim of undue influence or duress at the hands of someone who is benefitted by the will, and
    • fraud.

  • What degree of testamentary capacity is required under Virginia law to make a will?

    You must understand that showing someone lacked testamentary capacity to make a will under Virginia law is exceedingly difficult.  A person making this claim must show, by strong evidence, that the person making the will did not have mind enough to understand the nature of the business in which he is engaged, to recollect the property being disposed of, the objects of his bounty, or the manner in which he wishes to distribute his property. 

    It is not enough to show that the person did not have the same quality of mind that he previously had, that the mind is debilitated, or that the testator is eccentric.  Just because someone lacks the mental strength and qualities to transact business affairs does not mean they cannot make a will.

  • How do you contest a will in Virginia?

    There are two ways under Virginia law to contest a will.  First, within 6 months after the clerk of the court enters the order that probates the will, any interested person may appeal that order to the circuit court.  The issue in these cases is whether the document admitted to probate actually is the decedent’s will.

    The second way to contest a will in Virginia is to file a complaint in circuit court seeking to impeach (challenge) the will as being the will of the decedent.  In such a case, the court is required by statute to empanel a jury to hear the case.  The sole issue for the jury to decide is whether the will that has been offered is, in fact, the will of the decedent.  The jury may also decide that some other paper produced at the trial is the actual will of the decedent.