Durable Powers of Attorney   

Individuals want to be in control of their lives.  The odds are, however, that at some point in time, many of us will, perhaps temporarily or perhaps permanently, be rendered unable to handle our financial affairs and our medical decisions due to a serious illness or accident.  There is a false perception that this loss of control occurs only in old age.

You need not give up complete control.  Using a thorough and well-written Durable Power of Attorney, you can have in place a capable person of your choosing who will handle or assist you in handling your medical and other personal matters, and your financial affairs, in the event that you become unable to do so yourself.

When no Durable Power of Attorney is in place or the one that is in place is insufficient, a guardianship may need to be commenced at the Court by a family member or some other interested individual.  Guardianships begin with a request that a judge find you to be incompetent to handle your own affairs and a request for the appointment by the judge of someone to handle your affairs for you. In guardianships, the judge is required to appoint a “guardian ad litem” to investigate whether or not a guardianship is needed and whether or not the person requesting the appointment is a suitable choice to serve as guardian. The guardian ad litem’s investigation involves several legal requirements, including obtaining a report from the treating doctor. The guardian ad litem is required to prepare and file a detailed written report with the Court setting educating the Judge about the facts and making a recommendation about what the judge should decide. The guardianship process can become quite involved and expensive.  Guardianships can take a two or more months to complete and typically cost several thousand dollars (taking into consideration the Court filing fee, the attorney’s fee, the guardian ad litem’s fee, the doctor’s fee and the cost of purchasing a guardian’s bond). In the years to follow, additional reports must be prepared and filed with the Court by the guardian that the judge appointed. And you may have little choice in who is appointed.

A well written Durable Power of Attorney typically does away with the need for a guardianship.

A Durable Power of Attorney is a legal document by which you (the "principal")  grant to another individual of your choice (the "agent") the power to handle important matters for you if you become incapacitated. That agent serves in a “fiduciary” capacity. That means that he or she must always act in your best interests, must be honest and must be accountable.  The agent must keep good records and cannot act in ways that are self-serving to the agent.

Typically individuals appoint a spouse or another close family member or friend to serve as agent. If you want to do so, you can appoint two or more agents to serve together on your behalf, often “jointly and severally”.  “Jointly” means that both agents are to act in concert with one another, to make all decisions together, and are to both sign documents to accomplish tasks. “Severally” means that both are appointed at the same time but either agent can act alone (often for the convenience of the agents) to make decisions and to accomplish tasks with your best interests in mind.

A medical Durable Power of Attorney authorizes an agent to make your medical decisions, including such things as approving treatment, determining where you are to receive your medical care and where you are to live while recuperating. Your agent can also be authorized to make the decision to remove you from life support if that decision ever needs to be made.

A financial Durable Power of Attorney authorizes the agent to manage your financial affairs.  This includes such tasks as depositing income, paying bills, managing investments and selling or purchasing assets on your behalf.

A single Durable Power of Attorney document can be used to appoint both the medical and the financial agent.  Using one document, you can appoint different individuals to handle each type of matter.

Every Durable Power of Attorney should appoint two or three backup agents in case the first choice(s) become unwilling or unable to serve as agent.

It should be noted that a Durable Power of Attorney can be drafted so that the authority given to the agent becomes effective immediately when you sign it or it can be drafted so that the authority given becomes effective only upon you becoming incapable of handling things yourself.  If, for instance, you are married, you may want to name your spouse as the first agent with his or her authority to act on your behalf becoming effective immediately when you sign the Durable Power of Attorney, even though you are not yet incapacitated.  You may then want to name certain of your adult children to serve as the alternate agents. However, you also may want to provide that the authority of those alternates only becomes effective if your spouse becomes unwilling or unable to serve and only when you are incapacitated as evidenced by a letter from your treating physician.

It should also be noted that limitations can certainly be placed on the type and extent of the authority that you grant to your agent.

And, of course, if you are healthy and are able to handle your own affairs, merely executing a Durable Power of Attorney does not diminish your authority to handle your own affairs.

Many years ago, a very short and simple Durable Power of Attorney document that essentially said, “My agent is authorized to handle all of my medical and financial affairs” was, in some circumstances, sufficient to allow the agent to do most things. Now, however, Federal laws (like HIPAA which addresses medical patients privacy) and state laws, as well as the internal rules and procedures of medical providers, title companies, banks and investment firms, have made it necessary for Durable Power of Attorney documents to be longer and more specific in articulating what the agent can and cannot do on your behalf.

In 2017, the Durable Power of Attorney laws in Washington were changed in some significant ways. When that occurred, our law firm updated all of our various Durable Power of Attorney forms and special provisions.  And we have continued to make revisions to the legal documents that we prepare for our clients as the laws and as various rules and procedures evolve.

It is critically important to understand that a very complete and useful Durable Power of Attorney is a complex legal document and must be very well written and complete. Avoid preparing your own Durable Power of Attorney based on forms borrowed from friends, purchased at bookstores or found on the Internet on the “prepare your own legal docs” sites. If your Durable Power of Attorney is missing critical provisions or is improperly executed, it may prove to be useless. Suffice it to say that such errors may be very costly.

Executing a Durable Power of Attorney that contains proper financial and health care decision-making authority is the best means available of assuring that your important needs will be properly attended to by a person of your choosing in the event of a future serious deterioration of your health.  Along with an up to date Will, an up to date Durable Power of Attorney should be a part of everyone's estate plan.  And, as with a Will, if in the future you ever decide that you want to make changes to your Durable Power of Attorney, you can certainly revoke the existing document and execute a new one.