Virginia Code 64.2-104: Incorporation by reference into a will, power of attorney, or trust instrument.
A. The following original documents may be incorporated by reference into a will, power of attorney, or trust instrument:
Terms Used In Virginia Code 64.2-104
- Fiduciary: A trustee, executor, or administrator.
- Fiduciary: includes a guardian, committee, trustee, executor, conservator, or personal representative. See Virginia Code 64.2-100
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
1. A letter or memorandum to the fiduciary or agent as to the interpretation of discretionary powers of distribution where the will, power of attorney, or trust instrument grants the fiduciary or agent the power to make distributions to beneficiaries in the discretion of the fiduciary or agent; and
2. A letter or memorandum stating the views or directions of the maker of the will, power of attorney, or trust instrument as to the exercise of discretion by the fiduciary or agent in making health care decisions for the maker.
B. No provision in the original document sought to be incorporated by reference under this section is enforceable if it contradicts or is inconsistent with a provision of the incorporating will, power of attorney, or trust instrument, including if it alters the possession or enjoyment of trust property or the income therefrom as directed in the trust instrument.
C. This section shall not prevent the incorporation by reference of any writing into any other writing that would otherwise be effective under § 64.2-400 or under any other law of incorporation by reference.
D. The maker shall sign and have notarized the documents referenced in subsection A and may prepare the documents before or after the execution of the will, power of attorney, or trust instrument.