By Ellen Jackson | Related Practice: Estate Planning
Washington adopted a new law affecting powers of attorney. Known as the Uniform Power of Attorney Act, the law will go into effect January 1, 2017 and is intended to provide greater protections for individuals who sign the power of attorney document (referred to as the principal), and more clarity to agents and third parties who are asked to work with an agent. Here is a brief summary of some of the key differences from prior law, as well as some points that remain unchanged:
- As always, if you executed a power of attorney that was valid under the law in effect at the time and place when the document was executed, your power of attorney remains valid. Under the new law, however, unless the power of attorney specifically states that it is intended to be durable, an agent’s authority to act expires upon the principal’s incapacity.
- The appointment of your spouse or registered domestic partner as your agent under a power of attorney will now be automatically revoked upon the filing of a petition for dissolution, divorce, legal separation or other dissolution of your relationship. Under prior law, unless your power of attorney provided otherwise, the spouse’s appointment as agent was automatically revoked only when a final decree of dissolution was entered. This change ensures that one spouse cannot gain unauthorized access to the other spouse’s assets during a divorce via a power of attorney that was executed when the relationship was on better terms, without having to re-execute documents or wait until the dissolution is finalized.
- If the dissolution action is withdrawn or dismissed with the consent of both parties, the spouse is automatically reinstated as the agent. This way, the couple can avoid the cost of re-executing new powers of attorney if they ultimately reconcile.
- If a court has appointed a guardian of the principal’s estate or specific property, an agent’s authority is terminated because the court-appointed guardian and agent would have overlapping responsibilities. This change should help clarify who (either the guardian or the agent) can take action regarding an incapacitated principal’s property, and prevent disagreements between a guardian and an agent about how to manage that property.
- The new law expressly lists fiduciary duties that the agent owes the principal. Before the new law, one had to review case law to define the parameters of these duties. The new law should help agents clearly understand what actions are required, permitted or not allowed. The new law specifically calls upon agents to act in good faith, in the principal’s best interest, to keep records, cooperate with those who have authority to make health care decisions for the principal, and provide records upon the request of the principal, a court or another fiduciary acting on the principal’s behalf. Upon the principal’s death, the personal representative of the principal’s estate or the principal’s successor-in-interest may make this request of the agent. The new law clarifies that a power of attorney document cannot relieve the agent from liability for breaches committed with dishonesty or improper motives, with gross negligence or as the result of abuse.
If you have questions about your power of attorney, contact one of the attorneys in the Stokes Lawrence Estate Planning Group.