I was having a conversation the other day with my hairdresser that made me realize that it is really important for people to know and understand the answer to the above question. We were talking about the latest attempt to deny civil rights to same sex couples (this takes the form of Referendum 71 in Washington) and it came up that he had not given Power of Attorney for Health Care to his life partner. He said that if he were really sick he would rather have his partner there with him and making decisions than his family. However he had not created that document because he was under the impression that his family would just deny his partner the right to be there at his bedside in the event of his incapacity.
There are a lot of issues floating around here, i.e. the elephant in the room: same sex marriage. But what I am going to focus on is who actually has the right to dispute a Power of Attorney for health care or file a court petition regarding the Power of Attorney and how they can win such a dispute.
The first thing to remember is that the reason people create these documents is so that their wishes are fulfilled in the event that they cannot express them because of incapacity. Incapacity can mean a number of things, that a person is in a coma, that they are delirious, that they are so sick or in so much pain that they cannot make clear decisions, that they are unconscious.
If someone has gone to the trouble of expressing their wishes in a legal document then Courts are inclined to listen to them, as long as procedure has been followed. Procedure is what Courts use to ensure that a person’s wishes are clear and their intent to express them is clear. Procedure is a stickler but ultimately, if one follows the rules they will have a very tight, very clear, very difficult to dispute expression of their wishes.
So, who can file a Court Petition to dispute a Power of Attorney in Washington State? Under RCW 11.94.100 the people who are allowed to file a petition are any of the following:
(a) The attorney-in-fact;
(b) The principal (that is the person who has created the power of attorney);
(c) The spouse or domestic partner of the principal (See RCW 11.94.080 for what happens if there is a divorce/dissolution);
(d) The guardian of the estate or person of the principal; or
(e) Any other interested person, as long as the person demonstrates to the court’s satisfaction that the person is interested in the welfare of the principal and has a good faith belief that the court’s intervention is necessary, and that the principal is incapacitated at the time of filing the petition or otherwise unable to protect his or her own interests.
However, you may specify in the power of attorney specific people who do not have the authority to bring a petition under RCW 11.94.090 with respect to the power of attorney. This provision is enforceable:
(a) If the person so named is not at the time of filing the petition the guardian of the principal;
(b) If at the time of signing the power of attorney the principal was represented by an attorney who advised the principal regarding the power of attorney and who signed a certificate at the time of execution of the power of attorney, stating that the attorney has advised the principal concerning his or her rights, the applicable law, and the effect and consequences of executing the power of attorney; or
(c) If (a) and (b) do not apply, unless the person so named can establish that the principal was unduly influenced by another or under mistaken beliefs when excluding the person from the petition process, or unless the person named is a government agency charged with protection of vulnerable adults.
So, the lesson in all of this is that if you know that your loved ones may not agree with your true wishes about how you would like to proceed if you are incapacitated then its important to prepare your Power of Attorney taking those factors into consideration.
