It is important to plan for who will be able to make decisions for you if you become incapacitated. When people think about estate planning, they often think about their Last Will and Testament (will). While a will is an essential part of your estate plan, it is equally important to plan for injuries or illnesses that may leave you incapacitated, which is what a durable power of attorney specifically addresses. At Baxter Legal Services, our experienced attorneys pride ourselves on understanding our clients’ objectives and ensuring that their estate plans clearly and precisely detail their wishes, both before and after their death. Contact our legal team at 425-686-0574 today to learn more, and ensure your legal rights remain protected.
Who Makes Decisions About My Health?
When a person becomes incapacitated without a power of attorney, the laws of the state control who is authorized to make decisions on behalf of the person. According to the Washington State Hospital Association, the priority of healthcare decision-making authority is as follows:
- An appointed guardian of the patient
- An agent who was been given a durable power of attorney
- The patient’s spouse or domestic partner
- The patient’s children, if they are at least 18
- The patient’s parents
- The patient’s adult brothers and sisters
- The patient’s adult grandchildren, if they are familiar with the patient
- The patient’s adult nieces and nephews, if they are familiar with the patient
- The patient’s adult aunts and uncles, if they are familiar with the patient
- Any adult who has shown special care or concern for the patient, is familiar with their personal values, and is reasonably available to make healthcare decisions
While this prioritization may accurately reflect some people’s wishes, many would rather have full control over who gets to make decisions on their behalf, which is why the durable power of attorney agent is so high on the priority list.
What Is a Durable Power of Attorney?
A durable power of attorney is a legal document that gives another person the authority to make decisions on a person’s behalf after they become incapacitated. The person executing the power of attorney is called the “principal,” and the person who is designated to make decisions is often referred to as the “agent.”
The durable power of attorney can authorize the agent to make not only healthcare decisions, but also important legal, financial, and business decisions on behalf of the principal. A few examples of these powers include:
- Making financial decisions, such as buying or selling property, investing money, and filing tax returns
- Making healthcare decisions, ensuring that medical providers are following your advanced directives, and otherwise acting as a healthcare surrogate
How Is a Durable Power of Attorney Different from a General Power of Attorney?
A durable power of attorney is different from a general power of attorney because the durable power of attorney is effective even after a person becomes incapacitated. Generally, a person who is incompetent or unable to communicate does not have the legal capacity to sign a power of attorney. This means that if a person becomes unexpectedly unconscious or, for example, suffers a brain injury that renders them unable to communicate, then they will no longer be able to designate an agent.
A durable power of attorney plans for this circumstance by anticipating future incapacity and designating the agent ahead of time. A general power of attorney generally terminates when a person becomes incapacitated, but the durable power of attorney remains effective. In the case of a healthcare durable power of attorney, the authority to make healthcare decisions is often made effective only after the person becomes incapacitated. RCW 11.125.090 governs when a power of attorney becomes effective.
What Are The Limits of a Durable Power of Attorney?
A person designated as an agent under a durable power of attorney has an extremely broad range of authority, which can be helpful to the principal when they fulfill their duties properly, but can also pose numerous risks. It is equally important to understand what an agent may not do under a power of attorney.
1. Use Property for Personal Purposes
First and foremost, the power of attorney should not be using the principal’s personal property for their own benefit unless they are permitted to do so. Granting someone a power of attorney gives them access to all of your financial information and authorizes them to make transactions. If you do not completely trust the person who you are considering designating as an agent, it may not be in your best interest to choose them. At Baxter Legal Services, we take the time to explain all of the potential risks of executing a power of attorney document and ensure that your assets will be protected.
2. Defy Your Known Wishes
The agent is typically chosen because they are familiar with the principal and have a strong understanding of what they would have wanted if they could communicate their wishes. If an agent knows, for example, that the incapacitated person always said they wanted to keep their home in the family, but the agent decides to sell the home on the principal’s behalf, they would be failing to uphold their obligation to adhere to the principal’s wishes. If the agent does not know the principal’s exact wishes concerning a particular matter, they should act in the principal’s best interest.
3. Change Your Will
The agent also may not alter or revoke the principal’s will. If the principal has properly executed a last will and testament, then that is how the property will be distributed.
The agent is also expressly forbidden from voting in a public election on behalf of the principal.
Discuss Your Estate Plan with One of Our Experienced Washington Estate Planning Attorneys
At Baxter Legal Services, we understand that preparing for incapacity is just as important to an estate plan as preparing for the end-of-life. We work closely with our clients to walk through every possible outcome and draft clear and precise legal documents that reflect our clients’ wishes. If you would like to discuss what a durable power of attorney is, call our office at 425-686-0574 to speak with a Washington estate planning attorney.