Page 22 - Pierce County Lawyer - July August 2024

By David Shelvey
A Power of Attorney
is a written agreement that creates a principal- agent relationship. It allows the agent to appear and do things (sign documents, etc.) instead of the principal having to be there.
As I have done for the last eight years, I returned to H&R Block as a tax preparer. Some clients came in with estate planning documents like a Durable Power of Attorney or a will; however, I question the legalities of some of them. And that is what prompted this article. Some of these estate planning documents look like some free AI website form generators were used that did not meet Washington legal standards. In this article, I will look at these estate planning documents: Power of Attorney and Durable Power of Attorney.
In Washington State, there are both statutes and case law governing the Power of Attorney language, form, execution, and enforcement. Starting with the statute’s history, the New Uniform Power of Attorney Act was drafted around 2006 and promoted around the country at law conferences. In 2016 the Washington State Legislature adopted the Act and on January 1, 2017 it became effective. Washington‘s Uniform Power of Attorney Act can be found in RCW 11.125. Currently, 26 states have adopted this UPOAA.
As individuals move around the country, they may be challenged by that states interactions of the Uniform Power of Attorney Act. This, of course, becomes problematic when the individual is faced with the need for portability and the need to contact an Estate Lawyer in that state to ensure their Power of Attorney is valid, enforceable, and meets their needs. Because the situation of each individual may be different, there is no one standard boilerplate form. The law can be very complex, and if incorrect language or formality is used, the Power of Attorney could be rendered non-enforceable. Hence, with individuals who go online and use the Internet, thinking they can save some time and money, may actually be creating problems for themselves later down the road.
Black’s Law Dictionary defines the word “Power” to mean
an authority to do some act... Next, "attorney," in the US is interchangeable with the word "lawyer." However, the history of the words reveals they have different root meanings. The term "attorney" has its roots in the Old French verb to ‘attorn,’ meaning to designate and transfer one’s rights and obligations to another. A perfect example is an attorney who represents
their client in a courtroom. The word "lawyer" has its origins traced back to the Middle English word “Lawe,” meaning a person who interprets the law. A later Middle English word was “man-of-law."
A Power of Attorney is a written agreement that creates a principal-agent relationship. It allows the agent to appear
and do things (sign documents, etc.) instead of the principal having to be there. The “Principal” is an individual who grants authority or power to an agent(s). The agreement must be signed and dated by the principal, which means it must be
in writing. The agreement is valid once it is executed, unless there is an issue with the language. Execution is done by the principal’s signature, which is acknowledged either before a notary public or attested (“the information provided herein
is true and complete”) by two or more competent witnesses.
It becomes effective either immediately or upon the principal being incapacitated. “Incapacity” means the inability of an individual to manage property, business, personal, or health care affairs. In Washington, there are two main ways to determine if an individual has become incapacitated: one is after an examination by a physician or licensed psychologist, and the other is by a judge after having a judicial hearing. Once the principal has become declared incapacitated, the Power of Attorney is terminated, unless it is a Durable Power of Attorney.
As far as going into effect, is it immediate or upon the
finding that the principal is declared incapacitated? There
is a difference between a Power of Attorney and a Durable Power of Attorney. As just stated, a Power of Attorney goes into effect as soon as the principal executes it and terminates upon the incapacity [or death] of the principal. Taking a look at the word ‘durable’, the state law says the word means not terminated by the principal’s incapacity. Black’s Law Dictionary defines the word as "perdurable," which signifies lasting long or forever. However, it is rarely ‘forever’ because, as a general rule, the death of the principal terminates the agency. Valentine v. Duke, 128 Wash. 128, 131, 222 P. 494 (1924); And 100 years later, this is still valid law. To be a Durable Power of Attorney, the agreement needs the following language, “This Power of
22 PIERCE COUNTY LAWYER | July/August 2024