A person may sign a power of attorney is he wants to appoint someone to act on his behalf should he become incapable of making decisions for himself. In Washington, a durable power of attorney can be signed for heath care purposes or financial transactions. Power of attorney guidelines are set forth in Section 11.94 of the Revised Code of Washington.
A principal, the person signing a power of attorney, must be mentally competent and he must select an agent or attorney free from any undue influence. The agent will act on the principle’s behalf when the power of attorney takes effect. While Washington law does not require that a power of attorney be witnessed or notarized, it is recommended because many other states do and a power of attorney will only be recognized in another state if that state’s requirements are met. The notary must confirm the principal’s identity and affirm that he is mentally competent. At least two witnesses must watch the principle sign the power of attorney to ensure that the signing is voluntary. No one related to the principal by blood or marriage can serve as a witness. Additionally, the principal’s physician and anyone who works in a health care facility where the principal resides are also disallowed as witnesses.
A power of attorney is considered durable if it does not take effect until the principal is declared incompetent or otherwise incapable of making decisions. The principal’s incapacity must be established in writing by the principal’s attending physician or by court order. Once in effect, the power of attorney is valid until the principal’s death, unless the principal revokes it while still fully competent, according to Section 11.94.030 of the Washington Revised Code.
If a principal wants to revoke his durable power of attorney, he may do so at any time before it takes effect. Revocation must be in writing and the agent must also be given written notice that the power of attorney was revoked. Any facility where the power of attorney would be used, such as a physician’s office or bank, must also be made award that the power of attorney is no longer valid.
An agent has a duty to act in the principal’s best interests. If she is responsible for handling the principal’s financial transactions, she can make deposits and withdrawals as authorized by Washington Revised Code 11.94.030. She must not commingle the principal’s funds with her own and cannot use the principal’s funds for her personal needs. If the durable power of attorney authorizes the agent to make medical decisions, the agent must consent to treatment or the withholding of treatment in accordance with what she knows are the principal’s wishes, often set forth in the durable power of attorney.
The Revised Code of Washington, Section 11.94.050, sets forth the limitations on an agent’s power. An agent is never permitted to make or change a will on the principal’s behalf, nor is he permitted to change the beneficiary to the principal’s life insurance policy, annuity or trust agreement. The agent also cannot make gifts of any of the principal’s property and cannot transfer property to a new trust or alter any trust already created by the principal.
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.