Both power of attorney (POA) and next of kin are important concepts in Washington estate law and relate to who makes decisions in the event that a person becomes incapacitated. Generally speaking, power of attorney overrides the next of kin in decisions because it is a formal legal document that takes precedence over next of kin relationships.
POA vs. Next of Kin
In Washington State, a durable power of attorney is a legal document that grants an individual (the agent, also known as “power of attorney,” “POA”, or “attorney-in-fact”) the right to make healthcare or financial decisions on behalf of another (the principal) if they are incapacitated and unable to make decisions. A power of attorney is typically a family member or close friend but can also be a professional fiduciary.
Next of kin is a legal concept that refers to an individual’s closest living relative – typically their spouse, children, parents, or siblings. In many cases, individuals do grant their next of kin power of attorney, but POA and next of kin are legally distinct concepts.
Importantly, if a person does not have a durable power of attorney for health care, Washington has a statute authorizing decision-making authority. A hierarchy of decision makers is set forth in RCW 7.70.065, starting with a guardian. Next is the POA, then the spouse or registered partner, then the children over the age of 18, etc. The statute is titled “Informed Consent…”. Understandably, health care providers need to have someone with authority to speak on behalf of an incapacitated person who needs immediate medical care.
There is no such statute, however, for financial matters. Next of kin have no authority absent a durable power of attorney granting them financial decision-making authority. Thus without a durable power of attorney next of kin have no authority, even the spouse, and the incapacitated person will be subject to a court-ordered guardianship/conservatorship.
Can a Power Of Attorney Document be Revoked or Challenged?
Yes, it is possible to override power of attorney in some cases. Primarily, the principal can revoke their power of attorney at any time as long as they are mentally competent. If the principal is incapacitated, other interested parties can challenge a power of attorney if they believe the agent is abusing the principal or no longer acting in their best interest.
For example, a court may override a power of attorney if the agent is committing fraud or coercing the principal. In cases where the court overrides a power of attorney, the court will typically assign a guardian/conservator to make decisions for the incapacitated person. Overriding a power of attorney in Washington State is a difficult and traumatic process that requires substantial evidence of negligence or wrongdoing by an agent.
If a next of kin feels that the agent with power of attorney is not fulfilling their obligation, they can file a motion to challenge a power of attorney.
Does Power Of Attorney Continue After the Principal’s Death?
In short, no, with one limited exception. The Power of attorney document and authority granted by it ceases after the principal dies. A power of attorney is granted expressly for the agent to make decisions while the principal is still living. Once the principal passes, the agent can no longer make decisions concerning their estate or finances. After a person dies, the responsibility of managing the decedent’s estate falls to the executor (personal representative or administrator). This person may also happen to have had the deceased’s power of attorney, but a power of attorney is separate from an executor or representative.
The limited exception concerns a healthcare power of attorney. RCW 68.50.160 authorizes a healthcare agent to direct disposition of remains if the decedent has not made a prearrangement.
ELG Estate Planning – Empowering Futures in Washington State
An estate planning attorney can help answer any lingering questions you may have about power of attorney, next of kin, and other estate planning issues. Contact ELG Estate Planning online or call to schedule a case consultation with one of our experienced attorneys.