Original Publish Date: May 9, 2017
While the federal government continues to debate legislative tools for the access to healthcare, the Washington state legislature has passed legislation that directly affects the way healthcare providers access their patients and clients. Limited and durable powers continue to be an integral part of the process for diagnosis and treatment of patients with limited or variable capacity. The proper analysis of the authority granted in such instruments continues to be vital to the healthcare provider’s ability to communicate with and receive appropriate input from their patients’ designated decision makers. As such, healthcare providers must be mindful and informed of recent changes to the statutory scheme that governs the validity of limited and durable powers of attorney.
Effective January 1, 2017, the Washington legislature enacted the state’s own iteration of the Uniform Power of Attorney Act, repealing and replacing the former statute, at RCW 11.94. The new legislation contains some critical changes to the former Power of Attorney Act which will necessarily alter the way that care providers, and short-term and long-term care facilities, react to power of attorney documents provided to them on behalf of patients in their care.
Initially, the new act contains certain formality requirements that did not previously exist with respect to the drafting and execution of a power of attorney. First, the new law requires that a power of attorney document be a writing that actually refers to itself, or uses the term, “power of attorney.”
Secondly, a power of attorney document will now terminate, in spite of whether it was created before or after the effectiveness of the new statute, upon the incapacity of the principal, unless the document expresses the principal’s intent that the document remains effective following the principal’s regaining capacity for decision-making. The statute suggests the phrases, “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,” as being sufficient to express the principal’s intent that the attorney in fact’s authority will not cease when the principal’s capacity is no longer impaired.
Third, powers of attorney created after January 1, 2017 must be signed and dated by the principal and either notarized, or witnessed by two individuals (“competent witnesses”) who are neither the principal’s home care providers, nor care providers at the principal’s long-term care facility, and who are unrelated to the principal by blood, marriage or domestic partnership. The witnesses must actually be present when the power of attorney document is signed by the principal. Powers of attorney executed prior to the enactment of the new law, or which would be effective in the state in which the document was executed, if outside Washington, are expressly excepted from these formal execution requirements.
This feature of the new law, in particular, is of interest to facilities and providers that intend to rely on powers of attorney in their interactions with their patients and their patients’ fiduciaries. Those providers relying on powers of attorney will now be in the position of having to analyze and determine the effectiveness of the powers of attorney presented by attorneys-in-fact purporting to have the principal’s authority, relative to their date of creation. Failure to do so may jeopardize the protection of providers who rely on the powers of attorney in good faith, should the principal or his estate later assert that the manner in which the power of attorney was employed, and/or relied upon, caused damage to the principal or his/her property.
Fourth, while the prior law provided that powers of attorney granting authority to the principal’s spouse or registered domestic partner would terminate upon the dissolution of the principal’s marriage or registered domestic partnership, the new law provides for such termination immediately upon the filing of an action to dissolve the marriage or domestic partnership.
Additionally, the newly enacted Uniform Fiduciary Access to Digital Assets Act (“UFADAA”) will now provide the principal the ability to direct custodians of the principal’s “digital assets,” such as electronic communications, to provide access to and control of those assets to the attorney in fact. Powers of attorney which set forth the attorney in fact’s authority to access the principal’s digital assets will now trigger the custodian’s obligation to provide access to those digital assets in specific ways outlined in the new act, which also applies to executors and guardians.
These changes to the statutory schemes, though subtle, are likely to be a source of future litigation involving healthcare providers and the facilities in which they practice. Failure to recognize the changes to the power of attorney statute and implement compliance and risk management systems to conform to the new uniform act’s requirements could subject providers and facilities to liability and regulatory entanglements that can be avoided with proper care. Though it be cliché, the Benjamin Franklin axiom that “an ounce of prevention is worth a pound of cure” is as true today as it was when Franklin spoke the words.
Hans Juhl is a litigator and a trial attorney at Ryan Swanson, with experience litigating both simple and complex trust and estate disputes. He can be reached at (206) 654-2203 or firstname.lastname@example.org.