Durable Power of Attorney

A Durable Power of Attorney is a document that an individual (called the principal) signs while competent  to give another person (called the attorney-in-fact) the authority to handle the principal's financial matters and to make health care decisions for the principal.

A Durable Power of Attorney can be drafter to become effective immediately when signed by the principal or effective only if the principal becomes disabled.  If the Durable Power of Attorney is effective upon the principal's disability, the document should include a statement of how the disability is to be determined.  Disability is commonly determined by a statement from the principal's physician.  However, the principal does not lose his or her ability to continue making decisions even if a Durable Power of Attorney is in place and even if the principal has been determined incompetent by his or her physician.  Obviously, that could lead to conflict between the principal and attorney-in-fact if opposing decisions are made.

The purpose of a Durable Power of Attorney is to appoint an attorney-in-fact who can handle the affairs of the principal if and when the principal cannot do so.  A principal's Durable Power of Attorney may be helpful in avoiding guardianship procedures for that principal if he or she becomes incapacitated.

The Durable Power of Attorney can give a number of powers to the attorney-in-fact including the power to provide for the principal's support, maintenance and health, including the power to provide informed consent for health care or medical treatment if the principal cannot do so.  Because of the important powers given to the attorney-in-fact, the choice of an attorney-in-fact is an important one.  There is not court supervision of the actions of the attorney-in-fact, making it a position of absolute trust, which should not be granted unless such trust is justified.  Likewise, an incapacitated principal is unlikely to be able to revoke a durable power of attorney if such trust proves to be misplaced.

Unless the Durable Power of Attorney specifically gives the attorney-in-fact the following powers, the Washington statutes do not allow the attorney-in-fact to have the power to: amend, alter or rewrite the principal's Will, estate planning or testamentary documents, or make gifts of the principal's property.  Gifting of the principal's property to qualify the principal for Medicaid may be allowed in certain circumstances despite any prohibition against gifts written in the Durable Power of Attorney (pursuant to Medicaid's rules and regulations for gifts).

A Durable Power of Attorney differs from a General Power of Attorney.  With a General Power of Attorney, the attorney-in-fact terminates if the principal is no longer competent.  Under the Durable Power of Attorney, the attorney-in-fact can continue to act on behalf of the principal even when the principal becomes incompetent.  This feature of the Durable Power of Attorney makes it an effective planning device for future incompetency or incapacity.  However, if the principal does not understand his or her impairment and continues making decisions which contradict the decisions of the attorney-in-fact, conflict between the principal and attorney-in-fact may result.  In such circumstances, a guardianship may be the only legal alternative to protect the incapacitated principal.

The above is intended to provide general information that may be useful to caregivers and family members of handicapped or incapacitated persons.  It is not intended to substitute for legal advice in individual cases.

Source:  Karen M. Thompson and Suzanne Howel

Attorneys at Law, Seattle, Washington

Date:                                                         

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Last modified: 06/06/08