[WSBAPT] POA Terms

Wed Jul 13 11:50:34 PDT 2022

Thank you everyone! I now have multiple avenues to pursue based upon how
the meeting goes with the agent later this week!

*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*

***EFFECTIVE IMMEDIATELY** All mail sent through the USPS should be sent to
the following address: **PO BOX 3319; Federal Way, WA 98063 *

Office/Scheduling Phone: (253) 285-7751

Direct: (253) 285-7453

e-mail <Brent at Williams-RuthLaw.com> / website
<http://www.williams-ruthlaw.com/> / facebook
<http://www.facebook.com/bwrlaw> /

On Wed, Jul 13, 2022 at 11:46 AM Jane Bitz <jbitz at whc-attorneys.com> wrote:

> If the prohibition is: “to make *ownership* changes in my property,
> including without limitation any transfer on death deeds”, as a practical
> matter, you may want to look at the POA to see if the Agent can borrow
> against the real estate in order to pay for care.
>
>
>
> If it is a property that has been held for a long time and there is
> significant capital gain liability associated with the sale, the best
> procedure may be to borrow against the property (not a change in ownership
> that would violate the terms of the POA).
>
>
>
> Jane.
>
>
>
> *Jane G. Bitz*
>
> Of Counsel | Wolff, Hislop & Crockett, PLLC
>
> *Helping Good People do Great Things!*
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> 12209 E. Mission Ave., Suite 5
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> Spokane Valley, WA 99206
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>
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>
> jbitz at whc-attorneys.com [Email]
>
> www.whc-attorneys.com <http://www.wolffandhislop.com/>
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>
>
>
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> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *Nick Pleasants
> *Sent:* Wednesday, July 13, 2022 11:14 AM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* Re: [WSBAPT] POA Terms
>
>
>
> 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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>
>
>
> 11225 SE 6th Street | Suite 100 | Bellevue, WA 98004
> Main: (425) 455-3900 | Fax: (425) 455-9201 | E-mail:
> npleasants at ohswlaw.com
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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
>
> 509-455-5300
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> 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>
> *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*
>
> ***EFFECTIVE IMMEDIATELY**** All mail sent through the USPS should be
> sent to the following address: PO BOX 3319; Federal Way, WA 98063 *
>
> Office/Scheduling Phone: (253) 285-7751
>
> Direct: (253) 285-7453
>
> e-mail <Brent at Williams-RuthLaw.com> / website
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