Almost every adult should have a plan for what happens if illness, injury, or dementia leaves them unable to manage money or make medical decisions. Without one, a Washington family may have to go to superior court to ask for a guardian or conservator, a public process that takes time and money and gives a judge, rather than the person themselves, the final say. Holmes Law helps clients as a Washington power of attorney attorney, preparing durable powers of attorney, health care directives, and related documents under current Washington law, and advising families on what to do when a loved one has already lost capacity.
Washington’s rules have changed significantly in the last decade. The Washington Uniform Power of Attorney Act, chapter 11.125 RCW, took effect January 1, 2017, and replaced the older statute with detailed rules on execution, agents’ duties, and when third parties must accept a power of attorney. The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act, chapter 11.130 RCW, took effect for adults on January 1, 2022, and requires courts to consider less restrictive alternatives before appointing a guardian. Michael Holmes is admitted in Washington and works with clients statewide by video and phone. This page is general information, not legal advice for your situation.
Why Incapacity Planning Matters in Washington
A durable power of attorney and a health care directive let you choose who will act for you and give them instructions, while you are still able to do so. In Washington, a spouse or adult child does not automatically have authority to sign a deed, open a bank account, move retirement funds, or deal with the Health Care Authority on your behalf. Even married couples who own everything as community property can find themselves stuck: one spouse cannot sell or encumber community real property alone under RCW 26.16.030, so if the other spouse is incapacitated and there is no power of attorney, a court proceeding may be needed.
Incapacity planning also supports long-term care and Medicaid planning. An agent who needs to transfer assets to a spouse, create a trust, or change a beneficiary designation to carry out a plan must have express authority to do so, as explained below. The WA Medicaid planning page covers why that matters.
Washington Durable Powers of Attorney Under Chapter 11.125 RCW
Durable by default
Under the Washington Uniform Power of Attorney Act, a power of attorney is durable, meaning it continues if the principal becomes incapacitated, unless the document expressly says otherwise. A power of attorney can be effective immediately or “springing,” effective only on a future event such as incapacity. Springing documents are sometimes harder to use because the agent must prove the triggering event, so many clients choose immediate effectiveness with a trusted agent.
Execution requirements
RCW 11.125.050 requires that the power of attorney be signed and dated by the principal and either acknowledged before a notary public or signed by at least two competent witnesses who sign in the principal’s presence and at the principal’s direction. Witnesses cannot be a home care provider for the principal, a care provider at an adult family home or long-term care facility where the principal lives, or a person related to the principal or the agent by blood, marriage, or state registered domestic partnership. A notarized signature is presumed genuine, and notarization is needed as a practical matter whenever the agent may record documents affecting real property, so Holmes Law generally has powers of attorney notarized.
Agent duties
An agent who accepts appointment must act in good faith, within the scope of authority granted, and in accordance with the principal’s reasonable expectations to the extent known, and otherwise in the principal’s best interest. Unless the document provides otherwise, the agent must also act loyally, avoid conflicts that impair the ability to act impartially, keep records, and attempt to preserve the principal’s estate plan. Agents who misuse authority can be liable to the principal and, in some circumstances, may be subject to claims for financial exploitation of a vulnerable adult, discussed on the WA elder abuse and financial exploitation page.
Powers That Must Be Granted Expressly (“Hot Powers”)
RCW 11.125.240 lists powers that an agent has only if the power of attorney grants them expressly. In Washington, these include the authority to:
- Create, amend, revoke, or terminate an inter vivos trust.
- Make gifts.
- Create or change rights of survivorship.
- Create or change beneficiary designations.
- Delegate authority granted under the power of attorney.
- Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan.
- Exercise fiduciary powers the principal has authority to delegate.
- Create or change a community property agreement.
- Make health care decisions.
The statute also limits agents who are not the principal’s ancestor, spouse, state registered domestic partner, or descendant: such an agent may not use the power of attorney to create an interest in the principal’s property for the agent, or for someone the agent is legally obligated to support, by gift, survivorship, beneficiary designation, disclaimer, or otherwise, unless the document expressly allows it.
Note that the Washington statute lists health care decision-making among the powers requiring an express grant. A financial power of attorney that is silent on health care does not authorize medical decisions, which is why many Washington clients sign either a combined document that expressly covers health care or a separate durable power of attorney for health care.
When Banks and Others Must Accept a Power of Attorney
One of the most practical features of the Washington act is its acceptance rules. Under RCW 11.125.200, a person presented with an acknowledged (notarized) power of attorney must, within seven business days, either accept it or request an agent’s certification or a translation. If a certification or translation is requested, the person must accept within five business days after receiving it.
A person may refuse only for reasons recognized in the statute, including that the person would not engage in a similar transaction with the principal, that federal law prohibits the transaction, that the person has actual knowledge the agent’s authority has ended, that the agent refuses to provide a requested certification or translation, that the person in good faith believes the power is not valid or the agent lacks authority, or that a report has been made to Adult Protective Services about possible abuse, neglect, exploitation, or abandonment by the agent. A person who refuses in violation of the statute can be ordered by a court to accept the power of attorney and can be liable for reasonable attorney fees and costs.
These rules apply to acknowledged powers of attorney. That is another reason to notarize, even though Washington also permits witnessed execution.
Health Care Directives, Health Care Powers, and POLST
Health care directive (living will)
Washington’s Natural Death Act, chapter 70.122 RCW, authorizes a health care directive in which an adult states whether life-sustaining treatment should be withheld or withdrawn if the adult has a terminal condition or is in a permanent unconscious condition. Under RCW 70.122.030 the directive must be signed and either acknowledged before a notary or signed in the presence of two witnesses. Witnesses may not be related to the declarer by blood or marriage, may not be entitled to any part of the declarer’s estate, and may not be the attending physician, an employee of the physician or the health facility where the declarer is a patient, or a person with a claim against the estate.
Durable power of attorney for health care
A health care directive states wishes; a health care power of attorney names a person to make decisions. A Washington health care agent can speak with providers, consent to or refuse treatment, access records, and choose care settings, within any limits in the document. Washington also recognizes a separate mental health advance directive under chapter 71.32 RCW.
POLST
Washington uses the Portable Orders for Life-Sustaining Treatment (POLST) form. Unlike a directive, a POLST is a medical order signed by the patient’s health care provider, intended for people with serious illness or frailty. It travels with the patient and tells emergency responders and facilities what treatment to provide. A POLST does not replace a directive or health care power of attorney; it translates current wishes into orders.
Who Decides When There Is No Document: RCW 7.70.065
If an adult lacks capacity to give informed consent and has no guardian or health care agent, RCW 7.70.065 sets a priority list of surrogate decision makers: a court-appointed guardian with health care authority; a person holding a durable power of attorney that includes health care decisions; the spouse or state registered domestic partner; adult children; parents; adult siblings; adult grandchildren who are familiar with the patient; adult nieces and nephews who are familiar with the patient; adult aunts and uncles who are familiar with the patient; and finally a close friend who meets statutory criteria and signs a declaration under penalty of perjury. When several people share the same priority level, such as three adult children, the statute generally requires that they agree.
That default list is useful but no substitute for a document. Families disagree, the “right” person may not be in the highest category, and the list does not give anyone authority over finances.
Capacity: The Legal Standard
Capacity is decision-specific. A person may have enough capacity to sign a power of attorney or health care directive even after a dementia diagnosis, as long as the person understands the nature and effect of the document at the time of signing. Washington applies different standards for wills, contracts, gifts, and powers of attorney, and a person may lack capacity to manage complex finances while still able to choose a trusted agent. When capacity may be challenged later, Holmes Law may recommend a contemporaneous physician’s letter and careful documentation of the signing.
Guardianship, Conservatorship, and Less Restrictive Alternatives
Washington’s Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act, chapter 11.130 RCW, uses “guardian” for decisions about the person and “conservator” for decisions about property. Courts must find that less restrictive alternatives, such as a power of attorney, a health care agent, a trust, supported decision-making, or appropriate technology, will not meet the adult’s needs before appointing a guardian or conservator. The court can also order a protective arrangement for a specific transaction or concern, rather than a full guardianship or conservatorship, and can limit an appointment to the areas where help is truly needed.
The act also recognizes supported decision-making agreements, in which an adult chooses supporters to help gather information and understand choices while the adult continues to make his or her own decisions.
If a guardianship or conservatorship becomes necessary, a well-drafted power of attorney still matters: Washington law gives weight to the principal’s nomination of a guardian or conservator in the document.
Coordinating With Your Estate Plan
Powers of attorney and directives work alongside a will and trust. A WA revocable trust can name a successor trustee who manages trust assets during incapacity without court involvement, while the power of attorney covers assets outside the trust, retirement accounts, taxes, and government benefits. Review both together so the agent and trustee can work as a team. See Washington estate planning for the broader picture.
Revoking or Changing a Power of Attorney
A principal with capacity can revoke a power of attorney at any time. Revocation should be in writing, and notice should be given to the agent and to any bank, brokerage, or other institution that has a copy on file, because under the act a third party that accepts a power of attorney in good faith without actual knowledge that it has been revoked is generally protected. Signing a new power of attorney does not automatically revoke an earlier one unless the new document says so, so Washington powers of attorney prepared by Holmes Law state expressly whether earlier documents are revoked. If a power of attorney was recorded with the county auditor to allow real estate transactions, the revocation should be recorded as well.
Documents should also be reviewed after major life events. Under the act, the filing of a dissolution or annulment of a marriage or state registered domestic partnership generally terminates the spouse’s or partner’s authority as agent unless the document provides otherwise.
Frequently Asked Questions
Does a Washington power of attorney need to be notarized?
Not always. RCW 11.125.050 allows notarization or two qualified witnesses. But the acceptance rules in RCW 11.125.200 apply to acknowledged powers of attorney, and real property transactions generally require an acknowledged document, so notarization is strongly recommended.
Is my out-of-state power of attorney valid in Washington?
Generally, a power of attorney executed in another state is valid in Washington if it complied with the law of that state when signed. In practice, third parties may be more comfortable with a Washington-form document, and hot-power rules may differ.
Can my agent make gifts to qualify me for Medicaid?
Only if the document expressly grants gifting authority, and any limits in the document are followed. Without express authority, the agent cannot make gifts under RCW 11.125.240.
Who makes medical decisions for my mother if she never signed anything?
The surrogate list in RCW 7.70.065 applies, starting with a guardian, then a health care agent, then a spouse or registered domestic partner, then adult children, and so on.
What if the bank refuses to accept my power of attorney?
For a notarized power of attorney, the bank must accept it or request a certification or translation within the statutory deadlines. A wrongful refusal can lead to a court order and liability for attorney fees.
Speak With a Washington Power of Attorney Attorney
A well-drafted power of attorney and health care directive can spare your family a court process at a difficult time. Visit the Washington elder law hub for related topics, or contact Holmes Law to speak with Michael Holmes about incapacity planning in Washington.