[WSBAPT] POA Terms

[Nick Pleasants]

If the POA fails and the principal lacks capacity to update it or sell the real estate herself, then you are looking at a conservatorship (formerly Guardianship of the Estate). Under the old statute, RCW 11.92.110 had a cross-reference to Ch. 11.56 RCW (intervention probate sale of real estate), which is a painfully difficult procedure. The new UGA doesn’t have an explicit reference to 11.56, so I’m not sure if that would still apply, but the conservatorship itself is painful enough that I would try to avoid it.
You might consider bringing a TEDRA Petition for Instructions under RCW 11.125.160(2) and ask the court to approve of the ability to sell using a realtor, or reforming the power of attorney to include selling of real estate. That would be cheaper than a conservatorship.
You might also just go straight to a title company and ask if they can insure a sale with that power of attorney. Pick a title company in the county where the property is located and ask their title/underwriting department to take a look at the power of attorney. Those are some of the most productive calls I have for clients, and a great way to build a lasting relationship.
Best,
Nick
Nicholas Pleasants | Shareholder

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Diane J. Kiepe
Sent: Wednesday, July 13, 2022 10:08 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] POA Terms

Brent,

I would almost speculate the later provision is meant as a limitation that would result in a change in estate plan but definitely could be read much broader to prohibit sales.  I think, if the Principal currently has capacity, a change is required to clarify the intent and to provide rights to sell if required to maintain the well-being of the Principal despite any other prohibition – otherwise, yes, I think you end  up in the court room.

Diane J. Kiepe

Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Brent Williams-Ruth
Sent: Wednesday, July 13, 2022 9:54 AM
To: WSBA Probate & Trust Listserv <WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com>>
Subject: [WSBAPT] POA Terms

Greetings List -

I am reviewing a POA for an agent who is seeking guidance.

The document begins with all rights under 11.125.270 (the power to buy, sell, etc. real property). The issue pops up several pages and multiple paragraphs later:

MY attorney-in-fact does not have the power:
...
(e) to make ownership changes in my property, including without limitation any transfer on death deeds.

The estate is real estate rich (house without a mortgage) and cash poor and the long-term care policy is about to expire and the AIF is not sure how they are supposed to do their job of paying the bills when cash runs out.  125.270 begins with "unless the POA otherwise provides..."

If the principal is deemed incapacitated - and this latter provision means the Agent cannot sell to access the funds - is the answer a court action authorizing such a sale?

Brent Williams-Ruth (pronouns: he/him)
Attorney-At-Law

Law Offices of Brent Williams-Ruth, a division of BWR Consulting, PLLC

Physical Address: 500 S 336th Street, Suite 214; Federal Way, WA 98003

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