AN ACT Relating to
powers of attorney; amending RCW 11.94.040, 11.96A.040, 11.96A.050, 11.96A.120,
and 11.94.050; and adding new sections to chapter 11.94 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
NEW SECTION. Sec.
1. (1) An appointment of a
principal's spouse as attorney in fact, including appointment as successor or
co‑attorney in fact, under a power of attorney shall be revoked upon
entry of a decree of dissolution or legal separation or declaration of
invalidity of the marriage of the principal and the attorney in fact, unless
the power of attorney or the decree provides otherwise. The effect of this
revocation shall be as if the spouse resigned as attorney in fact, or if named
as successor attorney in fact, renounced the appointment, as of the date of
entry of the decree or declaration, and the power of attorney shall otherwise
remain in effect with respect to appointments of other persons as attorney in
fact for the principal or procedures prescribed in the power of attorney to
appoint other persons, and any terms relating to service by persons as attorney
in fact.
(2) This section
applies to all decrees of dissolution and declarations of invalidity of
marriage entered after the effective date of this act.
Sec. 2. RCW 11.94.040 and 1985 c
30 s 28 are each amended to read as follows:
(1) Any person
acting without negligence and in good faith in reasonable reliance on a power
of attorney shall not incur any liability ((thereby)).
(2) If the attorney
in fact presents the power of attorney to a third person and requests the
person to accept the attorney in fact's authority to act for the principal, and
also presents to the person an acknowledged affidavit or declaration signed
under penalty of perjury in the form designated in RCW 9A.72.085, signed and
dated contemporaneously with presenting the power of attorney, which meets the
requirements of subsection (3) of this section, and the person accepting the
power of attorney has examined the power of attorney and confirmed the identity
of the attorney in fact, then the person's reliance on the power of attorney is
presumed to be without negligence and in good faith in reasonable reliance,
which presumption may be rebutted by clear and convincing evidence that the
person accepting the power of attorney knew or should have known that one or
more of the material statements in the affidavit is untrue. It shall not be
found that an organization knew or should have known of circumstances that would
revoke or terminate the power of attorney or limit or modify the authority of
the attorney in fact, unless the individual accepting the power of attorney on
behalf of the organization knew or should have known of the circumstances.
(3) An affidavit presented
pursuant to subsection (2) of this section shall state that:
(a) The person
presenting himself or herself as the attorney in fact and signing the affidavit
or declaration is the person so named in the power of attorney;
(b) If the attorney
in fact is named in the power of attorney as a successor attorney in fact, the
circumstances or conditions stated in the power of attorney that would cause
that person to become the acting attorney in fact have occurred;
(c) To the best of
the attorney in fact's knowledge, the principal is still alive;
(d) To the best of
the attorney in fact's knowledge, at the time the power of attorney was signed,
the principal was competent to execute the document and was not under undue
influence to sign the document;
(e) All events
necessary to making the power of attorney effective have occurred;
(f) The attorney in
fact does not have actual knowledge of the revocation, termination, limitation,
or modification of the power of attorney or of the attorney in fact's authority;
(g) The attorney in
fact does not have actual knowledge of the existence of other circumstances
that would limit, modify, revoke, or terminate the power of attorney or the
attorney in fact's authority to take the proposed action;
(h) If the attorney
in fact was married to the principal at the time of execution of the power of
attorney, then at the time of signing the affidavit or declaration, the
marriage of the principal and the attorney in fact has not been dissolved or
declared invalid; and
(i) The attorney in
fact is acting in good faith pursuant to the authority given under the power of
attorney.
(4) Unless the
document contains a time limit, the length of time which has elapsed from its
date of execution shall not prevent a party from reasonably relying on the
document.
(5) Unless the
document contains a requirement that it be filed for record to be effective, a
person ((shall)) may place reasonable reliance on it regardless
of whether it is so filed.
NEW SECTION. Sec.
3. (1) A person designated
in section 4 of this act may file a petition requesting that the court:
(a) Determine whether
the power of attorney is in effect or has terminated;
(b) Compel the attorney
in fact to submit the attorney in fact's accounts or report the attorney in
fact's acts as attorney in fact to the principal, the spouse of the principal,
the guardian of the person or the estate of the principal, or to any other
person required by the court in its discretion, if the attorney in fact has failed
to submit an accounting or report within sixty days after written request from
the person filing the petition, however, a government agency charged with the
protection of vulnerable adults may file a petition upon the attorney in fact's
refusal or failure to submit an accounting upon written request and shall not
be required to wait sixty days;
(c) Ratify past acts or
approve proposed acts of the attorney in fact;
(d) Order the attorney
in fact to exercise or refrain from exercising authority in a power of attorney
in a particular manner or for a particular purpose;
(e) Modify the
authority of an attorney in fact under a power of attorney;
(f) Remove the attorney
in fact on a determination by the court of both of the following:
(i) The attorney in
fact has violated or is unfit to perform the fiduciary duties under the power
of attorney; and
(ii) The removal of the
attorney in fact is in the best interest of the principal;
(g) Approve the
resignation of the attorney in fact and approve the final accountings of the
resigning attorney in fact if submitted, subject to any orders the court
determines are necessary to protect the principal's interests;
(h) Confirm the
authority of a successor attorney in fact to act under a power of attorney upon
removal or resignation of the previous attorney in fact;
(i) Compel a third
person to honor the authority of an attorney in fact, provided that a third
person may not be compelled to honor the agent's authority if the principal
could not compel the third person to act in the same circumstances;
(j) Order the attorney
in fact to furnish a bond in an amount the court determines to be appropriate.
(2) The petition shall
contain a statement identifying the principal's known immediate family members,
and any other persons known to petitioner to be interested in the principal's
welfare or the principal's estate, stating which of said persons have an
interest in the action requested in the petition and explaining the
determination of who is interested in the petition.
NEW SECTION. Sec.
4. (1) A petition may be
filed under section 3 of this act by any of the following persons:
(a) The attorney in
fact;
(b) The principal;
(c) The spouse of the
principal;
(d) The guardian of the
estate or person of the principal; or
(e) Any other
interested person, as long as the person demonstrates to the court's
satisfaction that the person is interested in the welfare of the principal and
has a good faith belief that the court's intervention is necessary, and that
the principal is incapacitated at the time of filing the petition or otherwise
unable to protect his or her own interests.
(2) Notwithstanding
section 1 of this act, the principal may specify in the power of attorney by name
certain persons who shall have no authority to bring a petition under section 3
of this act with respect to the power of attorney. This provision is
enforceable:
(a) If the person so
named is not at the time of filing the petition the guardian of the principal;
(b) If at the time of
signing the power of attorney the principal was represented by an attorney who
advised the principal regarding the power of attorney and who signed a
certificate at the time of execution of the power of attorney, stating that the
attorney has advised the principal concerning his or her rights, the applicable
law, and the effect and consequences of executing the power of attorney; or
(c) If (a) and (b) of
this subsection do not apply, unless the person so named can establish that the
principal was unduly influenced by another or under mistaken beliefs when
excluding the person from the petition process, or unless the person named is a
government agency charged with protection of vulnerable adults.
NEW SECTION. Sec.
5. In ruling on a petition
filed under section 3 of this act and ordering any relief, the court must
consider the best interests of the principal and will order relief that is the
least restrictive to the exercise of the power of attorney while still adequate
in the court's view to serve the principal's best interests. Upon entry of an
order ruling on a petition, the court's oversight of the attorney in fact's
actions and of the operation of the power of attorney ends unless another petition
is filed under this chapter or unless the order specifies further court
involvement that is necessary for a resolution of the issues raised in the
petition.
NEW SECTION. Sec.
6. In any proceeding
commenced by the filing of a petition under section 3 of this act by a person
other than the attorney in fact, the court may in its discretion award costs,
including reasonable attorneys' fees, to any person participating in the
proceedings from any other person participating in the proceedings, or from the
assets of the principal, as the court determines to be equitable. In
determining what is equitable in making the award, the court must consider
whether the petition was filed without reasonable cause, and order costs and fees
paid by the attorney in fact individually only if the court determines that the
attorney in fact has clearly violated his or her fiduciary duties or has
refused without justification to cooperate with the principal or the
principal's guardian or personal representative. In a proceeding to compel a
third party to accept a power of attorney, the court may order costs, including
reasonable attorneys' fees, to be paid by the third party only if the court
determines that the third party did not have a good faith concern that the
attorney in fact's exercise of authority would be improper. To the extent this
section is inconsistent with RCW 11.96A.150, this section controls the award of
costs and attorneys' fees in proceedings brought under section 3 of this act.
NEW SECTION. Sec.
7. The provisions of chapter
11.96A RCW, except for RCW 11.96A.260 through 11.96A.320, are applicable to
proceedings commenced by the filing of a petition under section 3 of this act.
NEW SECTION. Sec.
8. (1) The following persons
are entitled to notice of hearing on any petition under section 3 of this act:
(a) The principal;
(b) The principal's
spouse;
(c) The attorney in
fact;
(d) The guardian of the
estate or person of the principal;
(e) Any other person
identified in the petition as being interested in the action requested in the
petition, or identified by the court as having a right to notice of the
hearing. If a person would be excluded from bringing a petition under section
4(2) of this act, then that person is not entitled to notice of the hearing.
(2) Notwithstanding
subsection (1) of this section, if the whereabouts of the principal are unknown
or the principal is otherwise unavailable to receive notice, the court may
waive the requirement of notice to the principal, and if the principal's spouse
is similarly unavailable to receive notice, the court may waive the requirement
of notice to the principal's spouse.
(3) Notice must be
given as required under chapter 11.96A RCW, except that the parties entitled to
notice shall be determined under this section.
Sec. 9. RCW 11.96A.040 and 1999
c 42 s 201 are each amended to read as follows:
(1) The superior court
of every county has original subject matter jurisdiction over the probate of
wills and the administration of estates of incapacitated, missing, and deceased
individuals in all instances, including without limitation:
(a) When a resident of
the state dies;
(b) When a nonresident
of the state dies in the state; or
(c) When a nonresident
of the state dies outside the state.
(2) The superior court
of every county has original subject matter jurisdiction over trusts and all
matters relating to trusts.
(3) The superior courts
may: Probate or refuse to probate wills, appoint personal representatives,
administer and settle the affairs and the estates of incapacitated, missing, or
deceased individuals including but not limited to decedents' nonprobate assets;
administer and settle matters that relate to nonprobate assets and arise under
chapter 11.18 or 11.42 RCW; administer and settle all matters relating to
trusts; administer and settle matters that relate to powers of attorney;
award processes and cause to come before them all persons whom the courts deem
it necessary to examine; order and cause to be issued all such writs and any
other orders as are proper or necessary; and do all other things proper or
incident to the exercise of jurisdiction under this section.
(4) The subject matter
jurisdiction of the superior court applies without regard to venue. A
proceeding or action by or before a superior court is not defective or invalid
because of the selected venue if the court has jurisdiction of the subject
matter of the action.
Sec. 10. RCW 11.96A.050 and 1999
c 42 s 202 are each amended to read as follows:
(1) Venue for
proceedings pertaining to trusts shall be:
(a) For testamentary
trusts established under wills probated in the state of Washington, in the
superior court of the county where letters testamentary were granted to a
personal representative of the estate subject to the will or, in the
alternative, the superior court of the county of the situs of the trust; and
(b) For all other
trusts, in the superior court of the county in which the situs of the trust is
located, or, if the situs is not located in the state of Washington, in any
county.
(2) Venue for
proceedings subject to chapter 11.88 or 11.92 RCW shall be determined under the
provisions of those chapters.
(3) Venue for
proceedings pertaining to the probate of wills, the administration and
disposition of a decedent's property, including nonprobate assets, and any
other matter not identified in subsection (1) or (2) of this section, may be in
any county in the state of Washington. A party to a proceeding may request
that venue be changed if the request is made within four months of the mailing
of the notice of appointment and pendency of probate required by RCW 11.28.237,
and except for good cause shown, venue must be moved as follows:
(a) If the decedent was
a resident of the state of Washington at the time of death, to the county of
the decedent's residence; or
(b) If the decedent was
not a resident of the state of Washington at the time of death, to any of the
following:
(i) Any county in which
any part of the probate estate might be;
(ii) If there are no
probate assets, any county where any nonprobate asset might be; or
(iii) The county in
which the decedent died.
(4) Once letters
testamentary or of administration have been granted in the state of Washington,
all orders, settlements, trials, and other proceedings under this title shall
be had or made in the county in which such letters have been granted unless
venue is moved as provided in subsection (2) of this section.
(5) Venue for
proceedings pertaining to powers of attorney shall be in the superior court of
the county of the principal's residence, except for good cause shown.
(6) If venue is
moved, an action taken before venue is changed is not invalid because of the
venue.
(((6))) (7)
Any request to change venue that is made more than four months after the
commencement of the action may be granted in the discretion of the court.
Sec. 11. RCW 11.96A.120 and 1999
c 42 s 305 are each amended to read as follows:
(1) This section is
intended to adopt the common law concept of virtual representation. This
section supplements the common law relating to the doctrine of virtual
representation and shall not be construed as limiting the application of that
common law doctrine.
(2) Any notice
requirement in this title is satisfied if notice is given as follows:
(a) Where an interest
in an estate, trust, or nonprobate asset or an interest that may be affected
by a power of attorney has been given to persons who comprise a certain
class upon the happening of a certain event, notice may be given to the living
persons who would constitute the class if the event had happened immediately
before the commencement of the proceeding requiring notice, and the persons
shall virtually represent all other members of the class;
(b) Where an interest
in an estate, trust, or nonprobate asset or an interest that may be affected
by a power of attorney has been given to a living person, and the same
interest, or a share in it, is to pass to the surviving spouse or to persons
who are, or might be, the distributees, heirs, issue, or other kindred of that
living person upon the happening of a future event, notice may be given to that
living person, and the living person shall virtually represent the surviving
spouse, distributees, heirs, issue, or other kindred of the person; and
(c) Except as otherwise
provided in this subsection, where an interest in an estate, trust, or
nonprobate asset or an interest that may be affected by a power of attorney
has been given to a person or a class of persons, or both, upon the happening
of any future event, and the same interest or a share of the interest is to
pass to another person or class of persons, or both, upon the happening of an
additional future event, notice may be given to the living person or persons
who would take the interest upon the happening of the first event, and the
living person or persons shall virtually represent the persons and classes of persons
who might take on the happening of the additional future event.
(3) A party is not
virtually represented by a person receiving notice if a conflict of interest
involving the matter is known to exist between the notified person and the
party.
(4) An action taken by
the court is conclusive and binding upon each person receiving actual or
constructive notice or who is otherwise virtually represented.
Sec. 12. RCW 11.94.050 and 1989 c
87 s 1 are each amended to read as follows:
(1) Although a
designated attorney in fact or agent has all powers of absolute ownership of
the principal, or the document has language to indicate that the attorney in
fact or agent shall have all the powers the principal would have if alive and
competent, the attorney in fact or agent shall not have the power to make,
amend, alter, or revoke the principal's wills or codicils, and shall not have
the power, unless specifically provided otherwise in the document: To
make, amend, alter, or revoke any of the principal's ((wills, codicils,))
life insurance, annuity, or similar contract beneficiary designations,
employee benefit plan beneficiary designations, trust agreements, registration
of the principal's securities in beneficiary form, payable on death or transfer
on death beneficiary designations, designation of persons as joint tenants with
right of survivorship with the principal with respect to any of the principal's
property, community property agreements, or any other provisions for
nonprobate transfer at death contained in nontestamentary instruments described
in RCW 11.02.091; to make any gifts of property owned by the principal; to
make transfers of property to any trust (whether or not created by the
principal) unless the trust benefits the principal alone and does not have
dispositive provisions which are different from those which would have governed
the property had it not been transferred into the trust, or to disclaim
property.
(2) Nothing in
subsection (1) of this section prohibits an attorney in fact or agent from
making any transfer of resources not prohibited under chapter 74.09 RCW when
the transfer is for the purpose of qualifying the principal for medical
assistance or the limited casualty program for the medically needy.
NEW
SECTION. Sec. 13. Sections 1 and 3 through
8 of this act are each added to chapter 11.94 RCW.
