29 Dec Washington Legislative Update
The Washington legislature recently enacted the Uniform Power of Attorney Act (the “Act”), effective January 1, 2017. The Act spells out, among other things, execution requirements, powers of agents, termination of a power of attorney and agent liability but does not provide a statutory power of attorney form.
Washington Senate Bill 5635
“Agent” means a person granted authority to act for a principal under a power of attorney whether referred to as an agent, attorney-in-fact, or otherwise. The term includes an original agent, co-agent, successor agent, and a person to which an agent’s authority is delegated.
“Durable” (with respect to a power of attorney) means not terminated by the principal’s incapacity.
“Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
“Incapacity” means inability of an individual to manage property, business, personal, or health care affairs because the individual:
- Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or
- Is an absentee as defined by Washington law or outside the United States and unable to return.
“Power of Attorney” means a writing that uses the term “power of attorney” and grants authority to an agent to act in the place of the principal.
“Presently Exercisable General Power of Appointment” with respect to property or a property interest subject to a power of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the principal’s estate, the principal’s creditors, or the creditors of the principal’s estate. The term includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard, or the passage of the specified period. The term does not include a power exercisable in a fiduciary capacity or only by will.
“Principal” means an individual who grants authority to an agent in a power of attorney.
“Property” means anything that may be the subject of ownership, whether real or personal, legal or equitable, tangible or intangible, or any interest or right therein.
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.
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.
A power of attorney executed in the state of Washington on or after January 1, 2017 is valid if its execution complies with the above signature requirements.
A POA terminates when:
- The principal dies;
- There is an incapacity of the principal, if the POA is not durable;
- The principal revokes the POA;
- The POA provides that it terminates;
- The purpose of the POA is accomplished; or
- The principal revokes the agent’s authority, there is an incapacity of the agent, the agent dies, or the agent resigns and the POA does not provide for another agent to act under the POA.
The law affecting a power of attorney (POA) has been amended to provide specific details of the obligations and liabilities of an agent, which, among other things, include:
- Except as otherwise provided in a POA, a person accepts appointment as an agent by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance. An agent that violates the POA law is liable to the principal or the principal’s successors in interest for the amount required to restore the value of the principal’s property to what it would have been had the violation not occurred.
- An agent that has accepted appointment under a POA must act:
- In accordance with the principal’s reasonable expectations to the extent known and, otherwise, in the principal’s best interest;
- In good faith; and
- Only within the scope of authority granted in the POA.
A third party asked to accept a POA may request, and rely upon, without further investigation:
- An agent’s certification under penalty of perjury of any factual matter concerning the principal, agent, or POW;
- An English translation of the POA if it contains, in whole or part, a language other than English; and
An English translation or an opinion of counsel (as requested above) must be provided at the principal’s expense unless the request is made more than 7 business days after the POA is presented for acceptance.
Except as provided below:
- A person must accept an acknowledged POA or request a certification, or a translation not later than 7 business days after presentation of the POA for acceptance;
- If a person requests a certification or a translation, the person must accept the POA no later than 5 business days after receipt of the certification or translation; and
- A person may not require an additional or different form of POA for authority granted in the POA presented.
A person is not required to accept an acknowledged POA if:
- The person is not otherwise required to engage in a transaction with the principal in the same circumstances;
- Engaging in a transaction with the agent or principal in the same circumstances would be inconsistent with federal law;
- The person has actual knowledge of the termination of the agent’s authority or of the POA before exercise of the power;
- A request for a certification or a translation is refused;
- The person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification or a translation has been requested or provided; or
- The person makes, or has actual knowledge that another person has made, a report to the Department of Social and Health Services or other governmental agency, stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.
A person that refuses to accept an acknowledged POA (unless excepted above) is subject to:
- A court order mandating acceptance of the POA; and
- Liability for attorney fees and costs incurred in any action or proceeding that confirms the validity of the POA or mandates acceptance of the power of attorney.