A Washington, DC durable statutory power of attorney form is a document that grants someone (the “agent”) the legal authority to act and make financial decisions for another person (the “principal”) in the state. Unlike a regular non-durable power of attorney (POA), a durable power of attorney (DPOA) stays in effect even if the principal becomes incapacitated and legally can’t make their own decisions.
Although an agent has a ‘fiduciary duty’ to act in the principal’s best interest, this is not always the case. You should always choose someone you trust to be your agent.
Laws
Power of attorney forms can be made durable by including the following or similar language:
“This power of attorney will continue to be effective if I become disabled, incapacitated, or incompetent.”
- Statute: Chapter 26 (Uniform Power of Attorney Act).
- Presumed Durable: No (§ 21–2601.04).
- Signing Requirements: Signature of the principal is required. Witnesses are not required.
- Notarization: The principal must sign before a notary public (§ 21–2601.05).
- Statutory Form: Yes (§ 21–2603.01).
Definitions
Durable – “Durable” means it stays in effect even if the person who created it becomes unable to make their own decisions (§ 21–2601.02(2)).
Power of Attorney – As long as it’s a written record clearly granting another person the authority to act on behalf of the person who created it, it functions as a “power of attorney” (§ 21–2601.02(7)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
Per § 21–2602.17, there are restrictions that apply to the agent’s authority concerning gifts, which include:
Types of Gifts:
- Gifts “for the benefit of” a person: A donation to a trust, an account pursuant to § 21-301 to § 21-324, and a tuition savings account or prepaid tuition plan as delineated in 26 U.S.C. § 529.
- Outright gifts to individuals: The agent can directly transfer ownership (outright gift) of the principal’s property (including exercising a currently usable gift-giving power) to someone (donee). There’s a maximum amount per person following the yearly federal gift tax exclusion limit (mentioned in the US tax code section 26 U.S.C. § 2503(b)). It doesn’t matter if this specific tax exclusion applies in this case.
- Consent to splitting gifts made by the principal’s spouse: If the principal has a spouse who agrees (following section 26 U.S.C. § 2513), the agent can consent to splitting a gift made by the spouse. This allows them to combine their gift tax exclusions, potentially doubling the maximum amount that can be gifted to each person.
Considerations:
- Value and type of property owned by the principal.
- Anticipated future financial obligations and the principal’s need for support.
- Minimizing tax implications (income, estate, inheritance, etc.).
- Maintaining eligibility for benefits or programs.
- The principal’s history of gift-giving.
Agent’s Authority Limitations
According to § 21–2602.01, the limitations on an agent’s authority under a DPOA outline that the agent can only act based on explicit permission granted in the document, and even then if another agreement restricts it, the agent cannot act. It highlights specific actions that require clear mention in the document for the agent to have authority.
Agents who are not close relatives (ancestor, spouse, descendant) are restricted from using their power to benefit themselves or someone they support financially unless the form explicitly allows it. The agent’s authority applies to the principal’s property they own at the time the form is signed or acquire later, regardless of location. It also applies irrespective of where the DPOA is signed or exercised.
Revocation and Termination
§ 21–2601.10 outlines when a DPOA terminates and how to revoke it:
- Principal’s death.
- Revocation by principal.
- Pre-defined termination.
- Purpose achieved.
- Agent’s issues: The principal revokes the agent’s authority, the agent dies, becomes incapacitated, or resigns, and no successor agent is named in the form.
If the document appoints a spouse as the agent and the marriage dissolves or is legally separated (unless the form states otherwise), the agent’s authority ends. A new DPOA doesn’t automatically revoke a previous one unless explicitly stated in the new document.
Safekeeping and Registration
There is currently no central statewide registry for durable powers of attorney in the state. While the DC Code doesn’t mandate any specific way to safeguard a DPOA, it’s recommended to keep the original document in a secure location, like a safe deposit box.
You can also provide copies to trusted individuals or institutions you expect the agent to interact with (e.g., banks and financial advisors).
Additional Resources
- State Bar Association Website: Offers general legal resources that might be helpful.
- Legal Services Corporation (LSC): This national organization provides funding to legal aid programs across the country.
