Most people think of estate planning as only planning for death. But two of the most critical documents in any estate plan have nothing to do with death—they govern what happens if you become unable to make decisions for yourself while you are still alive.
An unexpected accident, a medical crisis, or the gradual onset of cognitive decline can leave you temporarily or permanently unable to manage your finances or communicate your health care wishes. Without the right documents in place, your family may find themselves unable to access your bank accounts, manage your property, or make medical decisions on your behalf—even if your intentions seem obvious. In some cases, they may have to petition a Washington court for a guardianship or conservatorship, a process that is expensive, time-consuming, and ongoing. This can all be avoided by having Durable Powers of Attorney in place.
Durable powers of attorney for finances and health care directives are the tools that prevent your loved ones who need and want to help you from being thwarted. They are typically the least expensive part of an estate plan and the most immediately protective—and they are something no adult should be without.
The difference between a financial power of attorney and a health care directive
These two documents serve distinct purposes, though they are often prepared together:
A durable power of attorney for finances (sometimes called a financial power of attorney or DPOA) designates a person—your agent—to manage your financial and legal affairs in the event you cannot. This can include paying bills, managing investments, filing tax returns, buying or selling property, and dealing with government agencies on your behalf. The scope of authority is broad and customizable.
A health care directive (sometimes called an advance directive or health care power of attorney) designates a person to make medical decisions on your behalf when you cannot make them yourself. A health care directive typically also includes a living will component that expresses your wishes about life-sustaining treatment, resuscitation, and end-of-life care, so that your agent and your medical team have documented guidance.
Both documents become active when—and only when—you lack the capacity to act for yourself. Until that point, you retain full authority over your own affairs.
What “durable” means and why it matters
The word “durable” is one of the most important legal terms in these documents, and it is easily overlooked. Under Washington law (RCW 11.125), a durable power of attorney remains effective even if you become incapacitated. A non-durable power of attorney automatically terminates when the principal loses capacity.
This distinction matters enormously. A power of attorney that terminates the moment you become incapacitated is essentially useless for the purpose of incapacity planning—it disappears at exactly the moment you need it most. For estate planning purposes, you want durable powers of attorney that explicitly state they survive incapacity.
Washington’s Uniform Power of Attorney Act (RCW 11.125), which took effect in 2017, provides detailed rules about what a durable power of attorney must contain and how agents must act. An attorney-prepared document drafted after 2017 should comply with these requirements; older documents may need to be reviewed and updated.
Choosing the right agent and naming a successor
Your agent under a durable power of attorney carries significant authority and significant responsibility. This is not a role to assign casually or out of a sense of obligation to a particular family member. Consider the following:
Trustworthiness above all else. An agent with broad financial authority has access to your assets and your accounts. Choose someone whose integrity is beyond question—not just someone who is responsible in their own life, but someone you would trust completely with your money.
Naming a successor agent. Your first choice may predecease you, become incapacitated themselves, or be unwilling to serve when the time comes. Always name at least one successor agent. If both your primary and successor agent are unavailable, the power of attorney may be functionally useless and a court proceeding may become necessary.
Organization and follow-through. Financial management under a power of attorney can involve paying recurring bills, managing investments, communicating with government agencies, and keeping detailed records. Choose someone who can handle this level of administrative responsibility.
Availability. An agent who lives across the country and travels frequently for work will face real practical challenges. Physical proximity and availability matter, particularly in a crisis.
Willingness to serve. Talk to the person you have in mind before naming them. Discovering the role on the day it becomes necessary is not ideal. Make sure your chosen agent understands the responsibilities and is willing to accept them.
For a health care directive, your agent does not need to be the same person as your financial agent. Different people may be better suited to the different roles. A sibling who is highly organized with finances may not be the right person to make difficult medical decisions under pressure. Think carefully about both roles separately.
How specific or broad to make the agent’s authority
Under Washington’s Uniform Power of Attorney Act, a durable financial power of attorney can grant an agent sweeping authority or narrow authority, depending on what you need. A general durable power of attorney typically covers most categories of financial transactions—banking, real estate, investment management, tax matters, and business operations, among others. You can also limit the authority to specific matters, such as managing a particular account or handling a real estate transaction while you are traveling.
For most estate planning purposes, a general durable power of attorney with broad authority is appropriate. The goal is to ensure your agent can handle whatever comes up without being blocked by a missing authorization.
A few powers require explicit authorization under Washington law, even in an otherwise broad general power of attorney. These include the power to make gifts (including gifts to the agent), to create or modify trusts, to change beneficiary designations, and to disclaim inheritances. These so-called “hot powers” carry special risk of self-dealing or abuse, so Washington requires that they be specifically authorized in writing. An attorney-prepared document will flag these powers and discuss whether to include them.
For health care, your directive should give your agent sufficient authority to make the full range of medical decisions on your behalf, including decisions about treatment, hospitalization, surgery, and end-of-life care. Overly narrow language can frustrate the document’s purpose when a physician asks for guidance on a decision the directive does not clearly address.
Health care directives, living wills, and POLST forms
Washington law recognizes several related documents for expressing health care wishes, and they serve different purposes:
Health care directive (advance directive). This is the primary document for naming a health care agent and documenting your health care wishes. It covers a broad range of medical situations, including capacity-affecting events like anesthesia or severe illness, not just terminal conditions. Washington’s Health Care Declarations Act (RCW 70.122) governs these documents.
Living will component. Many health care directives include a “living will” section that expresses your wishes about life-sustaining treatment if you are in a terminal condition, a permanent unconscious condition, or an end-stage condition. This portion guides both your agent and your medical team about whether you want aggressive intervention or comfort-focused care. Being explicit about your wishes here—rather than leaving the decision entirely to your agent—reduces the burden on your family and reduces the chance of disagreement.
POLST form (Physician Orders for Life-Sustaining Treatment). A POLST is different from an advance directive. It is a medical order—signed by a physician—that travels with a patient and provides immediate guidance to emergency responders and medical personnel. A POLST is typically appropriate for people who are seriously ill, elderly with significant health conditions, or in a care facility. It is not a substitute for an advance directive; they serve complementary purposes. Your physician can help you determine whether a POLST is appropriate for your situation.
What happens without these documents
If you become incapacitated without a durable power of attorney and health care directive in place, the consequences for your family can be severe:
Frozen finances. Banks, brokerage firms, and other financial institutions will not allow anyone to access your accounts without legal authority. Even a spouse does not automatically have authority to manage accounts that are held solely in your name. Bills can go unpaid, investments can go unmanaged, and transactions that need to happen may be impossible.
Guardianship and conservatorship proceedings. Without a power of attorney, a family member who needs to manage your affairs must petition the Washington Superior Court for appointment as your guardian (for personal decisions) or conservator (for financial decisions). This is a formal legal proceeding, requires an attorney, involves court supervision, and requires ongoing annual accountings to the court. It is expensive, time-consuming, and—perhaps most importantly—it removes control from your family and places it with the court. It can all be avoided by having your durable powers of attorney already in place.
Medical decision-making disputes. Without a health care directive, medical personnel will look to family members for guidance about your care, but the legal authority to make decisions may be unclear. Washington’s Health Care Decisions Act provides a default priority order for surrogate decision-makers, but disputes among family members about your care wishes can create painful conflicts at the worst possible moment.
Your wishes may not be honored. Even if your family knows exactly what you would have wanted, they cannot legally enforce those wishes without the right documents. A health care directive is the primary tool for ensuring your end-of-life wishes are documented and respected.
A note on coordination with your estate plan
Powers of attorney and health care directives operate while you are alive. Your will and any trust documents take over at death. There is no overlap, but there should be no gap either. A complete estate plan addresses both: what happens if you become unable to act for yourself, and what happens when you are gone.
If you have a revocable living trust, your successor trustee can manage assets held in the trust during incapacity—but only those assets. A durable power of attorney remains necessary to cover assets outside the trust and to handle matters that a trustee cannot, such as filing your tax return or managing government benefits.
Make sure the people you name as agents under your powers of attorney and the trustees of any trust are aware of each other and understand how the documents interact.
Frequently Asked Questions
Can my agent use my power of attorney for their own benefit?
Under Washington law, an agent is held to a fiduciary standard and must act in your best interest, not their own. Self-dealing—using your assets for the agent’s own benefit—is a breach of fiduciary duty and potentially a crime. This is why choosing a trustworthy agent is so important, and why the “hot powers” that allow an agent to make gifts to themselves require specific authorization.
Does a power of attorney give my agent authority to change my will?
No. A power of attorney does not give an agent the authority to make, change, or revoke your will. That authority belongs to you alone and requires testamentary capacity.
Can I revoke a power of attorney if I change my mind?
Yes, at any time, as long as you have mental capacity. Revocation should be in writing and communicated to the agent and to any institutions that have been relying on the prior document. Creating a new power of attorney that explicitly revokes prior ones is the cleanest approach.
Do these documents need to be notarized in Washington?
Washington law requires a durable power of attorney to be signed before a notary public or acknowledged before two witnesses. Health care directives require the signature of two competent adult witnesses (who cannot be your health care provider or agent). Having an attorney prepare and oversee execution of these documents ensures compliance with current Washington requirements.
When should I update my powers of attorney?
Review these documents after any major life change: marriage, divorce, the death of a named agent, a move to a different state, or a significant change in your health or financial situation. Even without a triggering event, a review every five to ten years is advisable. Some institutions are reluctant to honor older documents; a recently executed power of attorney reduces the risk of an agent encountering resistance.
Conclusion
Durable powers of attorney and health care directives are often the cheapest documents in an estate plan and the most urgently protective. They ask you to make some difficult decisions—about who to trust, and about what you would want if you could no longer speak for yourself—but those decisions are far better made at your kitchen table, calmly and deliberately, than left to a court or a family in crisis.
Don’t put these off. If you already have them, pull them out and make sure they still reflect your wishes and name people who are still in your life and able to serve. If you don’t have them yet, the conversation is straightforward and the process is quick. Give us a call.