Key Changes as a Result of the Uniform Power of Attorney Act

RCW 11.125.00
Effective January 1, 2017

Under the new Power of Attorney Act effective January 1, 2017, there are some significant changes that everyone contemplating executing a Durable General Power of Attorney should be made aware.

Execution of a Durable Power of Attorney (“DPOA”) now includes the requirement that the person executing the Durable Power of Attorney (“Principal”) sign before either two (2) witnesses or a Notary Public. Previously, a person could sign a DPOA without any witnesses or Notary.

Durable Power of Attorneys validly executed in Washington State are valid in any other state. Conversely, DPOA’s validly executed in another state are valid in Washington State.

Durable Power of Attorneys must contain the following language in order for the DPOA to stay effective after the principal becomes disabled: “This Power of Attorney shall not be affected by the disability of the principal”, or “This Power of Attorney shall become effective upon the disability of the principal”. If the DPOA does not contain this verbage then the DPOA terminates on disability of the principal.

Durable Power of Attorneys can become effective at the time of signing the DPOA (“effective immediately”) or they can become effective on the principal’s disability (“effective on disability”). If the DPOA becomes effective on disability then a letter from the principal’s doctor stating that the principal is disabled, must be attached to the DPOA.

A principal can nominate more than one person (“Agent”) to act under their DPOA. If two or more persons are nominated to act as Co-Agents under the DPOA, unless the DPOA states otherwise, the Co-Agents must act jointly.

Reasonable compensation is now authorized for agents operating under a valid DPOA. Reimbursement of expenses is still authorized.

Certain powers must be specifically set forth in the DPOA document in order for the agent to have those powers. Some of the powers that must be expressly set out include: Power to allow gifting, amend or revoke Community Property Agreement, make provisions for non-probate transfers at death (“Transfer on Death Deed”), make health care decisions for principal, and powers related to retirement benefits and/or annuities.

A person that refuses to accept an acknowledged (Notarized) Durable Power of Attorney in violation of RCW 11.125.200, is subject to a court order and/or liability for attorney’s fees and costs incurred to enforce the Durable Power of Attorney.

These provisions are not intended to digest the entire Uniform Power of Attorney Act but only provide a synopsis of common provisions. To review all provisions under the Uniform Power of Attorney Act, please search RCW 11.125 under the Washington Court Rules.