Power of Attorney Update in WA State

Power of Attorney update

By Jill Bellis

 Laws change frequently, so it’s time to revisit the Power of Attorney law. Washington State adopted a new law as of January 1, 2017. First, do you have one for yourself? For your family member? This is the most asked question as an Eldercare Consultant. So many times, individuals tell me they “think” they have one. Many don’t always know the true definition of Power of Attorney and what it can mean. And even more often there is no record of a Power of Attorney.

As a reminder, a power of attorney document lets you choose a trusted friend or relative to help you with your finances and/or health care decisions. After you sign it in front of a notary, the person you choose will take the power of attorney document to your medical providers, bank and other places to make decisions and sign contracts just as if he or she were you. 

The POA Act was introduced in Washington state in the 1970s and had little updating until the revisions took effect at the first of the year. Since 1985, powers of attorney have been governed by Washington’s Power of Attorney Act, RCW 11.94. In April of 2016, however, Governor Inslee signed into law Washington’s new Uniform Power of Attorney Act (SB 5635), which will take effect on January 1, 2017.

New formalities for execution. Previously, a POA did not need to be witnessed or notarized. The new law will require either the POA be witnessed or notarized.

New termination provisions. The law was updated to provide that a POA will terminate upon: (1) the filing of dissolution of marriage or a domestic partnership; or (2) the court appointment of a guardian, conservator or fiduciary. This is slightly different from the old law. Regarding divorce, the old law terminated the POA only upon a final decree of dissolution.

New co–agent default provisions. Co-agents (two agents who are appointed at the same time to exercise the same power) must exercise their authority jointly unless the document specifies that each agent has independent authority.

New broad powers when generally granted. The new law allows the principal to give a general grant of power (e.g. over real property) with a simple and short sentence because specific key words grant lengthy statutory powers. Here again, the old POA will be subject to the old POA laws. Because of this change, new POAs might be much shorter than those previously drafted.

Agents’ liability for delegation to third parties lessened. An agent who engages a third party (like an attorney or CPA) is not liable for the acts of the professional.   

The actual law:

RCW 11.125.050

Power of attorney—Requirements. (Effective January 1, 2017.)

(1) A power of attorney must be signed and dated by the principal, and the signature must be either acknowledged before a notary public or other individual authorized by law to take acknowledgments, or attested by two or more competent witnesses who are neither home care providers for the principal nor care providers at an adult family home or long-term care facility in which the principal resides, and who are unrelated to the principal or agent by blood, marriage, or state registered domestic partnership, by subscribing their names to the power of attorney, while in the presence of the principal and at the principal's direction or request.

(2) A power of attorney shall be considered signed in accordance with this section if, in the case of a principal who is physically unable to sign his or her name, the principal makes a mark in accordance with RCW 11.12.030, or in the case of a principal who is physically unable to make a mark, the power of attorney is executed in accordance with RCW 64.08.100.

(3) A signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments.