[WSBAPT] Power of Attorney - AIF's Designation of Successor AIF

[Carrie M. Kovacevich]

Dear Colleagues:

 

Question:  Can a Power of Attorney grant an Attorney-in-Fact the ability to
designate a successor AIF?

 

Facts:  An elderly client identified her son as her AIF in both financial
and health care Powers of Attorney, but is unable to identify an alternate
agent.  She does not want to interview and select a prospective guardian; if
her son cannot assume the duties or becomes unable to serve, she prefers
that he choose the successor AIF.

 

I reviewed RCW 11.94 and 11.95 and researched Washington case law, and do
not see that this is specifically prohibited or permitted.  The court in
Bryant v. Bryant, 125 Wn.2d 113, 118 (1994), held:  "Powers of attorney are
strictly construed.  (Citation omitted.)  Accordingly, the instrument will
be held to grant only those powers which are specified, and the agent may
neither go beyond nor deviate from the express provisions.  (Citation
omitted.)" 

 

If the Power of Attorney contains the language described in RCW
11.94.050(1), indicating that the Agent has all the powers the principal
would have if alive and competent, and includes the right to identify a
successor AIF, is this sufficient?  This could be used to restrict "any
other interested person" from petitioning the court under RCW
11.94.100(1)(e). 

 

As a safeguard for the principal, before designating a successor, I believe
the first AIF should be qualified by following certain requirements of RCW
11.36.010 for a personal representative (cannot be of unsound mind or
convicted of any felony or a crime involving moral turpitude).  I assume the
successor AIF would have to petition the court under RCW 11.94.090(1)(h) to
confirm their authority.

 

I would appreciate your thoughts, including why this is or might be contrary
to law or the standard of practice.

 

Thank you!

 

Carrie

 

Carrie M. Kovacevich, J.D.

Lakeview Law, PLLC

2470 Westlake Avenue North, Suite 101

Seattle, Washington  98109-2282

Work:  (206) 367-6962

E-mail:   <mailto:carrie at lakeviewlaw.com> carrie at lakeviewlaw.com

Web:   <http://www.lakeviewlaw.com> www.lakeviewlaw.com

 

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