S-1548               _______________________________________________

                                                   SENATE BILL NO. 5969

                        _______________________________________________

State of Washington                               51st Legislature                              1989 Regular Session

By Senators Barr, Rinehart, Nelson and Rasmussen

Read first time 2/20/89 and referred to Committee on  Law & Justice.

AN ACT Relating to durable power of attorney; amending RCW 11.94.010; and adding new sections to chapter 11.94 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

        Sec. 1.  Section 25, chapter 30, Laws of 1985 and RCW 11.94.010 are each amended to read as follows:

          (1) Whenever a principal designates another as his or her attorney in fact or agent, by a power of attorney in writing, and the writing contains the words "This power of attorney shall not be affected by disability of the principal," or "This power of attorney shall become effective upon the disability of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's disability, the authority of the attorney in fact or agent is exercisable on behalf of the principal as provided notwithstanding later disability or incapacity of the principal at law or later uncertainty as to whether the principal is dead or alive.  All acts done by the attorney in fact or agent pursuant to the power during any period of disability or incompetence or uncertainty as to whether the principal is dead or alive have the same effect and inure to the benefit of and bind the principal or the principal's guardian or heirs, devisees, and personal representative as if the principal were alive, competent, and not disabled.  A principal may nominate, by a durable power of attorney, the guardian or limited guardian of his or her estate or person for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced.  The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification.  If a guardian thereafter is appointed for the principal, the attorney in fact or agent, during the continuance of the appointment, shall account to the guardian rather than the principal.  The guardian has the same power the principal would have had if the principal were not disabled or incompetent, to revoke, suspend or terminate all or any part of the power of attorney or agency.

          (2) Persons shall place reasonable reliance on any determination of disability or incompetence as provided in the instrument that specifies the time and the circumstances under which the power of attorney document becomes effective.

(3) A principal may empower his or her attorney-in-fact to provide informed consent for health care decisions on the principal's behalf without limiting the powers otherwise granted by this durable power of attorney.  The principal's physicians, the physicians' employees, or the owners, administrators, or employees of the health facility where the principal resides or receives care may not act as attorneys-in-fact for the principal unless related to the principal by marriage or blood.  This authorization shall be subject to the same limitations as a guardian, contained in RCW 11.92.040 (3)(a) through (d).

NEW SECTION. Sec. 2.  A new section is added to chapter 11.94 RCW to read as follows:

          The durable power of attorney provided for under this chapter shall continue in effect until revoked or terminated by the principal, by a court-appointed guardian, or by court order.

NEW SECTION. Sec. 3.  A new section is added to chapter 11.94 RCW to read as follows:

          (1) A durable power of attorney executed pursuant to chapter 11.94 RCW before the effective date of this section that specifically authorizes an attorney-in-fact to make decisions relating to the health care of the principal shall be deemed valid, except for the exemptions provided for in section 1(3) of this act.

          (2) Nothing in this chapter affects the validity of a decision made under a durable power of attorney executed pursuant to chapter 11.94 RCW before the effective date of this section.