Limitless Law’s Lead Attorney, Emily Rose Mowrey, recently had the opportunity to speak about Power of Attorney to Elder Service Providers, a local group of professionals working with seniors in Whatcom and Skagit counties. Emily helped clarify some common misconceptions and answer frequently asked questions about POAs. Highlights of her presentation included these Top 10 Tips about Powers of Attorney:
- A Power of Attorney is a document that allows a person (the “Principal”) to choose an agent to act on their behalf. Your “attorney in fact” or Agent can make legally binding decisions for you, including financial and/or health care related decisions. A Power of Attorney can give an Agent all these powers or only some of them, so it is important to review the actual POA document to see what decision-making powers an Agent really has.
- For a Power of Attorney to be legally valid in Washington State, it must be signed and notarized or signed and witnessed by two individuals who are not care providers for the Principal.
- You can choose one or more Agents with a Power of Attorney. You can appoint one Agent who can make decisions alone, with a backup or alternate Agent in case the first Agent is not available. A Principal can also choose Co-Agents, who must act together in making any decisions. If there are Co-Agents on a POA, you should make sure that you have approval of both agents for all decisions. If an individual is trying to make a decision or make a request for another person under the powers of attorney it is important that you review the power of attorney for when it is effective, now or only effective upon specific circumstances.
- An Agent cannot override a Principal’s decision or go against their express wishes, if they are able to speak for themselves and are mentally competent. In order to take away a person’s ability to make decisions for themselves, usually a court proceeding for guardianship must be initiated.
- A Financial POA can usually take actions such as: sign a mortgage for the principal, purchase or sell real estate, pay bills, open or close bank accounts and sign checks.
- A Medical POA can usually: give or withhold consent to medical treatments, including pain relief; access medical records; employ medical professionals on a Principal’s behalf; arrange companionship and visitation; and sign medical releases.
- Unless specifically authorized in the document, a Power of Attorney usually does NOT allow an Agent to: revoke a Will, alter payable on death designations on financial accounts or life insurance, gift property, or transfer property to a Trust.
- If a Principal has previously executed an Advanced Directive or POLST (Physician Orders for Life-Sustaining Treatment)-type form, those documents should also inform the medical team and the Agent about the patient’s desires for their health care. Generally, a power of attorney does not have the authority to override an advance directive.
- A Power of Attorney may also include language that specifies when it can be used. If the power of attorney states that it is “durable” then it can be used immediately upon signing and it continues to be valid even if the principal becomes mentally incapacitated, until the Principal dies or a guardian is appointed through a court proceeding. A “springing” or non-durable Power of Attorney does not go into effect until the Principal loses their mental capacity to act on their own behalf. Usually a medical professional must verify the Principal’s mental status before a springing power of attorney can be used by an Agent.
- A person can cancel or revoke their Power of Attorney any time, if they are mentally competent to do so. A POA is automatically cancelled when a Principal dies.
If you or a loved one has questions about POAs, or needs a Power of Attorney, call (360) 685-0145 to speak to an estate planning attorney.