[WSBARP] Power of Attorney and Wills

[Doug Owens]

Dear Jim, I agree.  RCW 11.98.011 requires that the trustor have the capacity to create a trust in order for the trust to be valid.  And the UPAA carefully in my opinion leaves out the power to create a will from the powers enjoyed by the holder of a DPA.  Yours truly, Doug Owens

On Dec 11, 2019, at 9:55 AM, Jim Doran <jim at doranlegal.com<mailto:jim at doranlegal.com>> wrote:

That sounds a little fishy to me.  Your suggestion is that by use of the POA the attorney in fact creates a Trust for the incompetent Principal and puts the beneficiary designations in the Trust. These designations will be different than in the Principal's Will.  When the Principal dies the assets in the Trust are distributed as per the terms of the Trust.

Isn't this the same problem?  The Trust was made when the Principal is incompetent.

JIm



James R. Doran
Attorney at Law
100 E. Pine Street -  Suite 205
Bellingham, WA 98225
(360)393-9506
jim at doranlegal.com<mailto:jim at doranlegal.com>
www.doranlegal.com<http://www.doranlegal.com/>


On Wed, Dec 11, 2019 at 9:51 AM Bryce Dille <Bryce at dillelaw.com<mailto:Bryce at dillelaw.com>> wrote:
I don’t think so if you read the Will statute and that power is not specifically given in the POA statute but on behalf of the party under appropriate POA  you can create a trust and convey property into the trust and use the trust provisions to govern the distribution of property when party dies.

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Jim Doran
Sent: Wednesday, December 11, 2019 9:13 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] Power of Attorney and Wills

Ladies and Gentlemen:

For many years I have used language in the Durable Power of Attorney that allows the attorney in fact to modify the Principal's  Last Will and Testament or make a new Will altogether.  However, I have always had my doubts about that clause.  Now I have a situation where the client wants to make a new Will for the Principal who is incompetent by virtue of dementia.

Is it valid for the Attorney in Fact to make a new Last Will and Testament for an incompetent Principal?

Jim Doran

James R. Doran
Attorney at Law
100 E. Pine Street -  Suite 205
Bellingham, WA 98225
(360)393-9506
jim at doranlegal.com<mailto:jim at doranlegal.com>
www.doranlegal.com<http://www.doranlegal.com/>
***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***

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