Do I Need a Durable Power of Attorney?


If you become incapacitated or disappear, you may need a person to act on your behalf to take care of your property or to make medical decisions on your behalf.  If you fail to appoint an attorney-in-fact under a durable power of attorney, decisions regarding your affairs may be delayed while someone petitions the court for authority to act on your behalf, which delay could be expensive or life-threatening.

Your attorney-in-fact may exercise great authority over your world.  Select persons you trust without reservation to serve in this capacity.  You can designate a person or persons, who will be your attorney-in-fact, to act on your behalf during your incapacity or even before your incapacity.  The document that appoints such a person is a power of attorney.  The person you appoint in your power of attorney is your “attorney-in-fact.”  This is a term of art; your attorney-in-fact need not be an attorney, and usually will not be an attorney, but rather a trusted family member.  If the durable power of attorney provides that the person you nominate retains the powers you grant them even though you may have subsequently become incapacitated, then the document is called a “durable power of attorney.”  RCW 11.125.040.  You may nominate different persons to care for your property and medical care (though I recommend that they be the same person, if possible).  In a durable power of attorney, you may nominate your guardian, which person the court is obligated to appoint as your guardian if such a decision is made by a court on your behalf at some point, unless good cause indicates that person’s appointment is inappropriate.  You may authorize your attorney-in-fact to make your health care decisions and provide informed consent to your medical providers.

I do not recommend that you name two or more people to act as co-attorneys-in-fact.  If they have conflicts, they will deadlock, and a court will have to sort things out.  That can be expensive.

For persons over seventy years of age, and for younger persons who have known medical threats, I recommend that their durable power of attorney should be presently effective.  This means that the powers of the appointed attorney-in-fact commence upon signing, not at some future moment of disability.  Of course, such a determination remains the privilege of the client, regardless of the client’s age.  RCW 11.125.090(1).

A person can make his or her durable power of attorney effective upon incapacity (see RCW 11.125.020(5)), and can also designate the person who is authorized to determine that the principal is incapacitated.  RCW 11.125.090(2).

Washington provides, by separate statute, that a person may execute a mental health advance directive.  This instrument, which may be included in a durable power of attorney, authorizes your attorney-in-fact to make mental health decisions on your part.  In the mental health advance directive, the client decides whether he wants to retain the freedom to revoke the mental health advance directive during periods when, due to his mental illness, the client may lack capacity.  RCW 71.32.  Given the prevalence of mental health issues, I recommend that all persons execute such a mental health advance directive.  The mental health advance directive may only be revoked in the manners prescribed by RCW 71.32.080.

If you have appointed your spouse or registered domestic partner as your attorney-in-fact and subsequently dissolve that relationship, your appointment of that spouse or registered domestic partner as attorney-in-fact is revoked.  RCW 11.125.100.

The acts of an attorney-in-fact can be reviewed, ratified, compelled to change, or prohibited by a court upon petition of an interested party with notice to all interested parties.  The court may also change the terms of the durable power of attorney, find the attorney-in-fact unfit and remove and replace that person, compel a third person to honor the authority of an attorney-in-fact, or order an attorney-in-fact to furnish a bond for performance of her duties.  RCW 11.125.160.

An attorney-in-fact's powers terminate under a durable power of attorney when revoked, when the power of attorney specifies, when a court orders termination or appoints a sucessor or guardian, or when the principal dies and the attorney-in-fact knows of the principal's death.  RCW 11.125.100.  An attorney-in-fact has extensive fiduciary duties the govern his or her duties (RCW 11.125.140), and extensive powers defined by statute (RCW 11.125.240-410).