A Washington durable power of attorney form allows someone to nominate an agent to handle their finances. The principal must complete the form and specify the agent’s powers. The document must be notarized, and the agent’s authority lasts even after the principal develops an incapacity.
If a principal wants to appoint medical authority to an agent, this document won’t suffice. Instead, they must create a medical POA or advance directive form.
Laws
- Statute: Chapter 11.125 RCW (Uniform Power of Attorney Act).
- Presumed Durable: No (RCW 11.125.040).
- Signing Requirements: The signature of the principal and at least two witnesses are required (RCW 11.125.050 and RCW 11.125.430).
- Notarization: A notary public can replace two witnesses when acknowledging this document.
- Statutory Form: Not present in the statutes.
Definitions
Durable – Means not terminated by the principal’s incapacity (RCW 11.125.020(2)).
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 (RCW 11.125.020(7)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
Explore the types of gifts and considerations for gifts as outlined in RCW 11.125.390:
Types of Gifts
- Consent to splitting gifts: The agent can consent to split a gift that the principal’s spouse transfers to another party. The amount per recipient can’t exceed the aggregate annual gift tax exclusions for both spouses, pursuant to 26 U.S.C. Sec. 2513.
- Outright gifts: Unless the DPOA says otherwise, it lets the agent give a gift directly to someone. The value of each gift can’t exceed the yearly limit set by the federal gift tax rules. This regulation applies even if the tax rules don’t apply to a particular gift.
- Gifts for the benefit of someone: A gift for the benefit of someone can mean various things, including gifts into a trust, savings accounts for minors under any state’s Uniform Transfers to Minors Act, and 529 accounts for education.
Considerations
An agent has permission to give a gift from the principal’s property directly to someone or for their benefit only if the agent believes it aligns with what the principal wants.
If the agent knows the principal’s goals, they should follow them. If not, the agent must decide based on what seems best for the principal, considering factors like:
- What the property is and how much it’s worth.
- What the principal might need to pay for in the future and their need for money to live on.
- How to lower taxes, including taxes on income, estates, inheritances, and gifts.
- Whether the gift could affect the principal’s right to get certain government benefits.
- Whether the principal has a history of giving gifts themselves or together with others.
Agent’s Authority Limitations
According to RCW 11.125.330, any transfer in the interest of the principal in real property, bonds, stocks, and other property to the trustee of a revocable trust created by the principal as the settlor is subject to the limitations in RCW 11.125.240(1).
An agent who isn’t an ancestor, state-registered domestic partner, spouse, or descendant of the principal can’t exercise authority under a POA to create an interest in the principal’s property for the agent or someone whom the court has determined the agent must support.
Furthermore, the authority an agent receives from a DPOA is exercisable with respect to property that the principal has when the DPOA is executed, whether the authority is exercised or the DPOA is executed in this state, or whether the property is located in this state (RCW 11.125.240).
Safekeeping and Registration
Washington has no statewide registry, so principals and agents are responsible for keeping their documents safe. They may retain copies themselves and have a trusted lawyer or financial institution keep additional copies for additional protection.
If you designated real estate powers to your agent, please record the document in the recorder’s office where the property is located.
Additional Resources
- WashingtonLawHelp.org: Provides information on DPOAs and legal aid services.
- Washington Bar Association: Lets the public find legal help for matters they feel they can’t navigate on their own.
Related Forms
Medical Power of Attorney
Signing Requirements: Two witnesses or a notary public. (RCW § 11.125.050 and RCW § 64.08.100).
Minor (Child) Power of Attorney
Signing Requirements: Two witnesses or a notary public. (RCW § 11.125.050)).
