Washington State Laws Concerning Illegal Gifting to Self by Power of Attorney

By Heather Frances J.D.

Granting a power of attorney is a useful way to enable someone else to act on your behalf if you become incapacitated or otherwise cannot act on your own. For example, if you develop a significant mental illness you may need someone to take care of your financial or health decisions. However, when you grant the power of attorney to your agent, he must act within the state of Washington’s power of attorney laws, including laws about gifts. If your agent gives himself gifts by using your power of attorney without permission or in a way you didn't authorize, this could be illegal.

Powers of Attorney

Chapter 11.94 of the Revised Code of Washington, authorizes written powers of attorney for both medical and financial purposes. Your power of attorney only gives your agent authority to act within the restrictions outlined in the power of attorney. For example, if you want your agent to have access to your bank accounts at one bank but not at others, you can specify that in the power of attorney document. If you are concerned about gifts your agent may give, you can address gifting specifically in your power of attorney. Your power of attorney can state that your agent cannot give himself any money or property, which would make any gifts he made to himself illegal.

Gifts by Power of Attorney

Washington law does not allow your agent to make gifts on your behalf unless your power of attorney specifically states that you are giving him that authority. Even if your power of attorney says that your agent has all the powers and authority that you have, it must also state that he has the power to give gifts or your agent will be acting illegally by giving gifts to anyone, including himself. Even if your power of attorney gives your agent authority to give gifts, he can only do so on your behalf because he is acting under your authority.

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Compensation of Agent

Your agent cannot receive compensation for making mental health treatment decisions but can be reimbursed for expenses associated with those decisions. However, Washington law does not prohibit compensation for anything else under a power of attorney so your agent can be paid for other types of decisions and responsibilities as long as the power of attorney doesn’t prohibit the agent from taking compensation. Unless you have specifically authorized your agent to do so, an agent is not allowed to use your property for his own benefit.

Termination of a Power of Attorney

In Washington, even if your power of attorney doesn’t have a termination date, it will terminate when you become incapacitated unless it contains language making it “durable” or “springing.” A durable power of attorney is effective as soon as you sign it and remains effective even after you become incapacitated. A springing power of attorney is only effective if you become incapacitated and is effective throughout your incapacity. If you change your mind about your agent or what powers you gave him, you can revoke your power of attorney while you are still mentally capable, or it can be terminated by a Washington court or court-appointed guardian. You power of attorney will automatically be terminated when you die. Once the power of attorney is revoked or terminated, your agent no longer has any authority to act.

Challenging an Agent

If you are concerned that an agent is acting improperly under a power of attorney, you may be able to file a petition requesting that the court remove the agent. If the court finds that removal of the agent is in the best interests of the person who granted the power of attorney and that the agent has violated his duties, the court can order that the agent be removed.

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Power of Attorney Guidelines for State of Oregon
 

References

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