If you want someone to be able to deposit your checks at your bank, file your taxes, or even sell or mortgage your home, you can create a handy document called a power of attorney. A POA is a simple document that grants specific powers to someone you trust—called an "agent" or "attorney-in-fact"—to handle certain matters for you.
You can make several different types of POAs in Washington. In particular, many estate plans include two POAs that are effective even if you become incapacitated:
In most estate plans, these POAs are what are known as "durable" POAs, which means that they retain their effectiveness even after you're incapacitated. It's a good idea for most people to create these two documents, as they help plan for the unexpected.
To learn about other types of POAs, including non-durable (limited) and springing POAs, see What Is a Power of Attorney. Below, learn how to create a durable financial POA that is valid in Washington.
For your POA to be valid in Washington, it must meet certain requirements.
The person making a power of attorney must have the mental capacity to do so. While the exact contours of the mental capacity requirement are open to interpretation by Washington courts, generally, people creating POAs should be able to understand their actions. If you're helping someone make a POA and you're unsure whether they have the required mental capacity, consult an estate planning attorney.
To make a POA in Washington, you must sign in the presence either of (1) a notary public or (2) two witnesses.
Even though you have a choice in Washington, it's best to at the very least have your POA notarized (if not witnessed as well), since many financial institutions will require it before they allow your agent to act under the POA. If you want your agent to be able to conduct real estate transactions, your county land records office will likely require a notarized document as well.
If you do choose to go the witnessing route, the witnesses cannot be:
(Wash. Rev. Code 11.125.050.) These restrictions help to avoid conflicts of interest.
Some private companies offer forms or templates with blanks that you can fill out to create your POA. For a more user-friendly experience, try WillMaker, which guides you through a series of questions to arrive at a POA (and estate plan, if you like) that meets your specific aims and is valid in your state. You can also hire a Washington lawyer to create a POA for you. Many lawyers will include durable POAs as part of a more comprehensive estate plan alongside a will or living trust.
Whatever method you choose, the process of making the POA will include either granting your agent comprehensive powers or selecting, from a list, the specific powers you want your agent to have. For example, you might choose to grant your agent the power to:
In Washington, if you want the power of attorney to be durable (so that it remains effective after your incapacitation), the document must explicitly state so. Washington's power of attorney statute suggests wording such as "This power of attorney shall not be affected by disability of the principal," or similar. (Wash. Rev. Code § 11.125.040.)
As mentioned above, you can't simply sign the document and call it a day. In Washington, you should have your POA notarized. Washington also allows you to have your POA witnessed by two people instead, but it's usually best, at the very least, to have your POA notarized. (See above.)
Once you have completed the POA, store the original in a safe place that your loved ones can easily access, and let them know where to find it. (It won't do much good locked away in a safe that no one can get into.) If you become incapacitated, your agent might need the original POA to act on your behalf.
You should also give a copy of the power of attorney to your agent so that your agent is familiar with the contents of the document.
If you chose "real property transactions" as one of the powers you granted to your agent, you should also file a copy of your POA in the land records office (called the recorder's office in Washington) in the county where you own real estate. This will allow the recorder's office to recognize your agent's authority if your agent ever needs to sell, mortgage, or transfer real estate for you.
You can also give copies of your durable financial POA to banks or other institutions that your agent might need to deal with in the future. This step might eliminate some hassles for your agent if your agent ever needs to use the POA. Banks can sometimes be finicky about accepting POAs; see Can Banks Refuse a Power of Attorney? for more details.
Legally speaking, you can name any competent adult to serve as your agent. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing agents, see What Is a Power of Attorney.
Washington allows you to appoint co-agents who are authorized to act at the same time, but it's usually advisable to stick to just one agent to minimize potential conflicts. However, naming a "successor" agent—an alternate who will become your agent if your first choice is unavailable for any reason—is always a good idea, as it creates a backup plan.
Your POA is effective immediately unless it explicitly states that it takes effect at a future date.
It's possible to create a condition that must be satisfied before the POA becomes effective—such as a doctor declaring that you are incapacitated—but there are many reasons why this type of "springing" power of attorney is not usually advised.
Any power of attorney automatically ends at your death. A durable POA also ends if:
Additionally, in Washington, if your spouse is named as your agent in your POA, that designation automatically ends if you or your spouse files for divorce. To be clear, your ex-spouse's authority to act as your agent ends, but your POA is still intact. So if you named a successor agent, that person would become your agent instead.
For more on Washington estate planning issues, see our section on Washington Estate Planning.