Power of attorney

Key Takeaways

• A power of attorney names an agent, traditionally called the attorney-in-fact, who may act in the principal's place. The agent does not have to be a lawyer.
• Washington's Uniform Power of Attorney Act is chapter 11.125 RCW, which requires the principal to sign and date the document with the signature acknowledged before a notary or attested by two or more competent witnesses.
• Authority over real property has to be granted expressly. A general instruction to handle someone's affairs does not by itself authorize a conveyance.
• A power of attorney used to convey real estate is recorded with the county auditor, alongside the deed it authorizes, under RCW 65.04.030.

What It Means

A power of attorney is a signed document in which one person, the principal, authorizes another to act in their place. The person receiving that authority is the agent, traditionally called the attorney-in-fact, and the title misleads almost everyone who meets it for the first time: no law degree is involved. An adult child, a sibling, or a business partner can serve.

In real estate the document solves a scheduling problem that carries legal consequences. An owner is deployed, hospitalized, or three time zones away when closing is set. Someone has to sign the deed, the settlement statement, and the loan papers, and a signature from the wrong person is worth nothing at all. The power of attorney is what makes the Attorney In Fact signature count as the owner's own.

Two features matter more than the rest. The authority reaches only as far as the document takes it, so scope has to be read rather than assumed, and a document that never mentions real property will not close a sale. The authority also lasts only as long as the document and the law allow. That second point catches people out, because a power of attorney does not automatically survive the principal losing capacity.

How It Works in Washington

Washington adopted the Uniform Power of Attorney Act as chapter 11.125 RCW, which governs documents created on or after January 1, 2017. RCW 11.125.020 defines the agent as a person granted authority to act for a principal under a power of attorney, whether denominated an agent, an attorney-in-fact, or otherwise. RCW 11.125.050 sets execution: the principal signs and dates the document, and the signature is either acknowledged before a notary public or other individual authorized by law to take acknowledgments, or attested by two or more competent witnesses. RCW 11.125.270 is the real property section, and it operates on language granting general authority with respect to real property.

Two Washington wrinkles decide most real transactions. First, RCW 65.04.030 lists powers of attorney to convey real estate among the instruments the county auditor records, alongside deeds, grants and transfers, and it records those that have been acknowledged or proved. That is why a power of attorney headed for a closing is normally notarized, and why it is recorded in the county where the property sits, ahead of the Deed it authorizes. Second, RCW 65.08.130 provides that a power of attorney recorded under RCW 65.08.060 through 65.08.150 is not deemed revoked by any act of the person who executed it unless the instrument of revocation is recorded in the same office. Recording therefore cuts both ways: it puts the authority on the public record, and it makes ending that authority a recording job too.

On durability Washington departs from what students expect. Under RCW 11.125.040 the authority terminates upon the incapacity of the principal unless the writing says otherwise, using words such as "This power of attorney shall not be affected by disability of the principal" or similar language showing the principal intended the authority to be exercisable notwithstanding incapacity.

Example

Ellen owns a house in Kent under contract at $535,000 and is deployed overseas three weeks before closing. She signs a power of attorney in front of a notary at the base legal office, granting her brother Rob general authority with respect to real property and identifying the Kent property by its legal description.

Rob overnights the original to the escrow office. On closing day the escrow officer records the power of attorney with the King County auditor first, then records the statutory warranty deed that Rob signs as attorney-in-fact for Ellen. That order matters: it puts the authority into the public record ahead of the conveyance it supports, so the chain of title itself shows why Rob's signature binds Ellen.

Change one detail and the closing stops cold. Had Ellen's document granted authority over her bank accounts and business affairs without granting general authority with respect to real property, Rob could not sign the deed and the title company would decline to insure. The scope of the grant, not the existence of a document, is what closes the transaction.

Common Mistakes and Exam Traps

• The attorney-in-fact is not an attorney at law. In this phrase attorney simply means an authorized agent.
• In Washington a power of attorney is not durable by default. Under RCW 11.125.040 the authority ends at the principal's incapacity unless the writing says it survives disability.
• Authority over real property must be granted expressly. A broad power to handle the principal's affairs does not by itself authorize signing a deed.
• Recording matters at both ends. Under RCW 65.08.130 a recorded power of attorney is not treated as revoked unless the revocation is recorded in the same office.