By Gerarda M. Culipher, Esq.[1]
The term “snowbird” is affectionately applied to people who own property in two different states; usually one in the North (often their lifelong, state residency), and one in warmer, southern climates. The COVID-19 Global Pandemic, being the telework-paradigm-shift and existential-provocateur that it was, enabled a rise in interstate migration. Sunbelt states surged in population. Florida, is the classic case; it saw over 200,000 more people moving in, than out, between the summer of 2020 and 2021. But Buyer Beware…there are some practical, estate planning considerations that Virginians should keep in mind if they are planning an interstate lifestyle. This article discusses some examples why it is critical that you craft a comprehensive Estate Plan, which generally includes a Will/Trust, Power of Attorney and Advance Medical Directive. For an initial consultation with Dominion Law Group, call us at 703-865-2525, or find us online at www.DominionLawGroup.net.
Differing State Laws on Power of Attorney Requirements
As a practical matter, when a Virginia resident crafts his/her Power of Attorney, it is notarized. But be mindful that some states may require TWO witnesses appearing at the bottom of a POA, in addition to the notary requirement. While two witnesses on a POA are not a Virginia requirement, if you anticipate a move to the Sunbelt, or buying a second home at the beach, it may make sense to have a Power of Attorney document which meets that state’s statutory thresholds, in the event your Agent has to rely on your Power of Attorney document, while you are down south. In our example of Florida, if your out-of-state POA does not meet their higher standards, your family may be asked to get a legal opinion from a licensed Florida attorney, regarding the POA’s validity (which could be an additional, legal expense and cause delays in decision-making).
Additionally, Virginians may want to keep their “original” Power of Attorney safe and on-hand, since some title companies, to comply with Land Records Offices recording standards in those states, require an “original” POA for closing on real estate transactions in their state. While a photocopy of a Power of Attorney works in most circumstances, if a family member will be representing you to buy or sell a property, an original POA may be required for closing/recordation on a real estate deal.
Differing State Laws on End-of-Life Provisions
An Advance Directive is a legal instrument where you (“the Declarant”) formally utter into writing your desires on medical and “end of life” care for yourself. End of Life provisions can include details about hospice, pain-management (sometimes called ‘palliative care’), life-support permissions, and nutrition & hydration. An Advance Directive is a key part of the triumvirate of classic, estate planning documents (your Will/Trust, your Power of Attorney, and your Advance Directive) which serve to make your End-of-Life preferences clear to family and medical care providers who will be treating you.
But Declarant Beware…. trends in state laws around America may differ on “Medical Aid in Dying” or “Physician-Assisted Suicide.” So, while you may craft a Power of Attorney or Advance Directive that sets out your wishes in the event of a severe, terminal condition, hospitals may not honor it (or may not be legally able to honor it). For Virginians this is not an academic issue. Just this year, in the 2024 Virginia General Assembly Session, Senate Bill SB 280 titled “Medical Aid in Dying” (which, in its initial and substituted forms would permit Virginia medical professionals to assist qualifying, terminal patients with the self-administering of lethal, controlled substances) passed the State Senate 21 to 19; it was referred to the House of Delegate’s Courts of Justice Committee for further study. Given the proposed bill’s “Effect on Wills, Contracts, Insurance and Annuities,” Virginians, and other Snowbirds, should be mindful that changes in state laws do happen, and they can impact your life, and your death. This is just another reason consulting with an estate planning attorney is so important; to ensure your desires and values are reflected in your planning documents.
Conclusion
With the sunshine and warm weather of sunbelt-living, come some important estate-planning considerations for Virginia “Snowbirds.” In addition to having your wishes and values expressed in your Will/Trust, Power of Attorney, and Advance Directive, if you plan an “interstate lifestyle” toggling between states, talk with a licensed attorney about the practical impacts of varying state requirements for your plan. Your loved ones will thank you for having been thoughtful at the outset!
To learn more, or to schedule an initial consultation, feel free to call us at 703-865-2525. Or find us on-line at www.DominionLawGroup.net, for more information.
[1] Gerarda M. Culipher is licensed to practice law in DC and Virginia. For specific, legal advice beyond general information on the laws of sunbelt-states, you can connect with attorneys through state bar associations: Lawyer Directory – The Florida Bar; Finding a Lawyer | North Carolina State Bar (ncbar.gov); Directory | South Carolina Bar (scbar.org)
