Should I file the Durable Power of Attorney for both of my living parents?

Full question:

I have been assigned Durable Power of Attorney for both of my living parents. Should I file it with any particular entity to record it and validate it?

• Category: Power of Attorney
• Date: 04/07/2025
• State: National

Answer:

In order to create a legally valid power of attorney, the principal (the person appointing an agent in the power of attorney) needs to properly complete and sign the power of attorney document. In most cases when individuals create a power of attorney, their signature on the form should be witnessed by a notary public. Usually, most power of attorney documents do not need to be recorded. If, however, the power of attorney grants the power to sell, lease, or otherwise dispose of the principal's real estate, the principal should also have the power of attorney recorded with the registry of deeds. The registry of deeds usually will be located in the county courthouse of the county where the property is located.

The following is a Washington statute:

RCW 11.94.040 Liability for reliance on power of attorney document.

(1) Any person acting without negligence and in good faith in reasonable reliance on a power of attorney shall not incur any liability.

(2) If the attorney-in-fact presents the power of attorney to a third person and requests the person to accept the attorney-in-fact's authority to act for the principal, and also presents to the person an acknowledged affidavit or declaration signed under penalty of perjury in the form
designated in RCW 9A.72.085, signed and dated contemporaneously with presenting the power of attorney, which meets the requirements of subsection

(3) of this section, and the person accepting the power of attorney has examined the power of attorney and confirmed the identity of the attorney-in-fact, then the person's reliance on the power of attorney is presumed to be without negligence and in good faith in reasonable
reliance, which presumption may be rebutted by clear and convincing evidence that the person accepting the power of attorney knew or should have known that one or more of the material statements in the affidavit is untrue. It shall not be found that an organization knew or should have known of circumstances that would revoke or terminate the power of attorney or limit or modify the authority of the attorney-in-fact, unless the individual accepting the power of attorney on behalf of the organization knew or should have known of the circumstances.

(4) An affidavit presented pursuant to subsection (2) of this section shall state that:

(a) The person presenting himself or herself as the attorney-in-fact and signing the affidavit or declaration is the person so named in the power of attorney;

(b) If the attorney in fact is named in the power of attorney as a successor attorney-in-fact, the circumstances or conditions stated in the power of attorney that would cause that person to become the acting attorney-in-fact have occurred;

(c) To the best of the attorney-in-fact's knowledge, the principal is still alive;

(d) To the best of the attorney-in-fact's knowledge, at the time the power of attorney was signed, the principal was competent to execute the document and was not under undue influence to sign the document;

(e) All events necessary to making the power of attorney effective have occurred;

(f) The attorney-in-fact does not have actual knowledge of the revocation, termination, limitation, or modification of the power of attorney or of the attorney-in-fact's authority;

(g) The attorney-in-fact does not have actual knowledge of the existence of other circumstances that would limit, modify, revoke, or terminate the power of attorney or the attorney-in-fact's authority to take the proposed action;

(h) If the attorney-in-fact was married to the principal at the time of execution of the power of attorney, then at the time of signing the affidavit or declaration, the marriage of the principal and the attorney-in-fact has not been dissolved or declared invalid; and

(i) The attorney-in-fact is acting in good faith pursuant to the authority given under the power of attorney.

(4) Unless the document contains a time limit, the length of time which has elapsed from its date of execution shall not prevent a party from reasonably relying on the document.

(5) Unless the document contains a requirement that it be filed for record to be effective, a person may place reasonable reliance on it regardless of whether it is so filed.