Estate Planning Resources & FAQ | Mulvaney Law Offices, PLLC — Bellevue, WA

Question 1

What is covered by MetLife Legal Plans?

Accepted Answer

All Attorney's Fees for the preparation and execution of the Estate Planning documents in your draft are fully covered by your MetLife Legal Plans legal insurance. If you lose coverage, there are 180 days from that date to complete service — what matters is that we begin service while you are covered.

Question 2

What is NOT covered by MetLife Legal Plans?

Accepted Answer

The following services are specifically excluded from MetLife Legal Plans coverage and require separate payment:

(1) Recording of Quitclaim Deeds, Transfer on Death Deeds, and Deeds of Trust — there is no relationship between the County Recorder and MetLife. Electronic recording with King County: $400/deed via Zelle (approximately 1 day). Mail-in recording fees vary by deed type — see the Deed Recording FAQ for exact amounts.

(2) Preparation of Deeds other than your Primary Residence — the discounted rate is $150 per deed, payable via Zelle.

(3) Estate Tax Planning — the cost to triple the WA Estate Tax Exemption from $3 million to $9 million (married people only) is $1,500, payable via Zelle.

Question 3

What matters are excluded from MetLife coverage?

Accepted Answer

The following matters are excluded from MetLife Legal Plans coverage and Mulvaney Law Offices, PLLC does not perform them under the plan: pre-existing matters where an attorney-client relationship existed prior to becoming eligible; matters where a client was previously represented by a non-plan attorney for the same case; farm matters, business or investment matters, matters involving property held for investment or rental, or issues where the Participant is the Landlord; bankruptcy services relating to a business interest; admiralty, patents, trademarks, copyrights, and income tax return preparation; appeals, class actions, interventions, amicus curiae filings, and derivative actions.

Question 4

What matters are prohibited under MetLife Legal Plans?

Accepted Answer

The following matters cannot be provided under any circumstances: disputes or proceedings related to the Employer or any employment-related benefit, matter, or incident, or plan sponsor acting as an adverse party; severance packages; pension plans; union matters; unemployment compensation or workers' compensation matters; matters involving MetLife Legal Plans, Inc., Metropolitan Life Insurance Company, or any affiliate, or any plan attorney; services on behalf of a spouse or dependent when the Member has an adverse interest.

Question 5

Do I really need an estate plan?

Accepted Answer

Yes — and it's not just for the wealthy. If you have any assets, a bank account, a home, a retirement account, or a family member who depends on you, you need an estate plan. Without one, Washington State law determines who inherits your assets, who raises your children, and who makes medical decisions for you if you're incapacitated. An estate plan puts those decisions back in your hands.

Question 6

When is the right time to create an estate plan?

Accepted Answer

The right time is now — regardless of your age or the size of your estate. Life is unpredictable, and the consequences of dying or becoming incapacitated without a plan can be severe for your family. Common triggers include getting married, having children, purchasing a home, receiving an inheritance, or approaching retirement. But you don't need to wait for a milestone. The best estate plan is the one you have in place today.

Question 7

How long does the estate planning process take?

Accepted Answer

For most families, the process takes two to four weeks from the initial consultation to signing your completed documents. The first consultation typically takes 60–90 minutes. After that, we draft your documents, review them with you, and schedule a signing appointment. We never rush the process — your plan should be right, not just fast.

Question 8

How much does estate planning cost?

Accepted Answer

MetLife Legal Plans (MLP) has such an excellent, low-cost plan that I ask all clients to enroll — and all clients who formerly paid directly are asked to purchase MetLife Legal Plans Individual Premium Legal Insurance instead of paying directly. If you have MetLife Legal Plans, there is no out-of-pocket cost for estate planning. Coverage is $22/month ($264 for one year) and you can cancel anytime after the first year. Coverage becomes effective on the first day of the month after purchase, as long as you enroll before the 23rd day of the month. Once you enroll, please forward the confirmation email you receive from MetLife Legal Plans — which contains your legal insurance effective date — to Christopher. We can start work before the effective date.

Question 9

What's the difference between a will and a living trust?

Accepted Answer

A will takes effect only after you die and must go through probate — a court-supervised process that can take months and cost thousands of dollars. A living trust takes effect immediately, allows your assets to pass directly to your beneficiaries without probate, and also provides a mechanism for managing your affairs if you become incapacitated. For most Bellevue families with real estate or significant assets, a living trust is the more efficient and private option.

Question 10

Does a living trust avoid all taxes?

Accepted Answer

A revocable living trust does not reduce estate taxes on its own — it is primarily a probate-avoidance and incapacity-planning tool. However, for married couples, a properly structured trust can help maximize the use of both spouses' estate tax exemptions. Washington State has its own estate tax with a $3 million exemption (as of July 1, 2026), which is lower than the federal exemption. Since Washington does not allow portability of a deceased spouse's unused exemption, separate property trusts are the primary tool for capturing both spouses' exemptions — effectively protecting up to $9 million from state estate taxes. We discuss tax planning strategies as part of every comprehensive estate plan.

Question 11

What happens to my trust assets if I become incapacitated?

Accepted Answer

One of the most valuable features of a living trust is seamless incapacity planning. Your trust document names a successor trustee — typically a spouse, adult child, or trusted friend — who steps in to manage trust assets on your behalf without any court involvement. This is far simpler and less expensive than a court-appointed conservatorship, which is what happens without a trust or durable power of attorney.

Question 12

Do I need to fund my trust? What does that mean?

Accepted Answer

Yes — a trust only controls assets that have been transferred into it, a process called "funding." This typically involves retitling real estate, bank accounts, and investment accounts into the name of your trust. We guide you through the funding process and provide a checklist of steps to take after your trust is signed. An unfunded trust is one of the most common — and costly — estate planning mistakes.

Question 13

What do I need to know about naming a trust as beneficiary on a retirement account or life insurance policy?

Accepted Answer

Naming a trust as beneficiary on a retirement account (401(k), IRA, pension) or life insurance policy is one of the most important coordination steps in estate planning. Key rules that apply across most plan administrators:

• Provide the trust name, the date the trust was created, and the trust's tax identification number (or your SSN if no tax ID has been assigned yet)
• Do not submit a copy of the trust agreement — provide the name and address of one trustee
• The trust must be established before the date the form is submitted
• Use whole percentages; all primary beneficiary percentages must total 100%; all contingent beneficiary percentages must total 100%
• Your primary beneficiary cannot also be your contingent beneficiary

Spousal Consent: Most qualified retirement plans (401(k), pension) require that a married participant designate their spouse as 100% primary beneficiary — or obtain the spouse's notarized written consent to name someone else. This consent is irrevocable unless the beneficiary designation is later changed or revoked. IRAs do not have the same spousal consent requirement under federal law, but Washington community property rules may still apply.

Minors and incompetent persons: If you name a minor or legally incompetent person as beneficiary, a court-appointed guardian or administrator may be required before any proceeds can be paid — causing delay and additional expense. Naming a trust for the benefit of a minor avoids this problem entirely.

The designation becomes effective when delivered to the plan administrator and remains in effect until you submit a new form with a later date.

Question 14

What is trust funding and why does it matter?

Accepted Answer

Funding the Trust means opening accounts and titling property in your name as Trustee of your Trust — rather than in your name individually. This keeps property separate even after marriage.

For the greatest protection, after signing your trust documents:
1. Take a copy of the trust to your bank
2. Open a Trust Checking Account and Trust Savings Account
3. Transfer your money into those accounts

The purpose of funding is twofold:
• It gives the Successor Trustee access to funds (in conjunction with a Power of Attorney for Finances) while you are still alive — to care for you and/or your children if you become incapacitated
• It avoids probate upon death by keeping assets inside the trust rather than in your individual name

An unfunded trust is one of the most common — and costly — estate planning mistakes. A trust only controls what has been transferred into it.

Question 15

When is a Small Estate Affidavit sufficient instead of probate?

Accepted Answer

As long as the estate contains no real estate and is valued at less than $100,000, no probate is needed. A notarized Small Estate Affidavit may be used by the beneficiary at least 40 days after the death of the decedent under RCW § 11.62.

The 40-day waiting period is one reason Payable on Death (POD) designations on bank accounts are valuable — they allow immediate access to funds without waiting for the affidavit period to expire.

If the estate contains real estate or exceeds $100,000 in value, probate or a properly funded trust is required to transfer assets to beneficiaries.

Question 16

What are the risks of giving real estate to an adult child during your lifetime?

Accepted Answer

Giving an interest in real estate to an adult child during your life will avoid probate — but it may have significant unintended negative consequences:

1. No step-up in cost basis — gifts made during life do not receive a step-up in cost basis the way gifts made at death do (including transfers via a Revocable Transfer on Death Deed). The recipient inherits your original purchase price as their basis, which can result in a much larger capital gains tax when they sell.

2. Capital gains tax — ask a CPA about capital gains taxation rates, which can be short-term or long-term and can be affected by depreciation, income, or marital status. The rate is typically about 15% (approximately $1,500 per $10,000 in gain) — less than ordinary income tax, but still significant on appreciated real estate.

3. Exposure to the child's creditors — the property may be included in a bankruptcy or divorce estate of the adult child.

4. Loss of control — refinancing or selling the property requires the adult child's signature.

5. Fractional ownership problems — if two people are on title with equal shares, each owner can pass their undivided interest to their own heirs, creating fractional ownership that is not marketable (no one wants to buy half a house). Without a Revocable Transfer on Death Deed for the fractional interest, probate is required. All owners must agree in order to refinance or sell.

Note: Even if two people are on title with equal shares, they can divide equity based on unequal contributions to the home by recording a Promissory Note and Deed of Trust on the property.

A Revocable Transfer on Death Deed avoids all of these problems — it transfers the property at death (with a step-up in basis), does not affect your control during life, and does not expose the property to the child's creditors until after you pass.

Question 17

Why does Mulvaney Law Offices not execute Wills?

Accepted Answer

There are several compounding reasons:

1. Electronic Wills custody trap — The Uniform Electronic Wills Act became effective in Washington on January 1, 2022. However, an Electronic Will may become invalid after execution if a 'Qualified Custodian' — not the grantor or their heirs — has not been in continuous possession of the Will from the date of execution to the date of death. Because all signing at Mulvaney Law Offices is electronic and unwitnessed (no ink signatures or live or electronic witnesses), Christopher has decided not to execute Electronic Wills.

2. Personal Representative residency requirement — The Personal Representative must live in the county where the property is located. If you have named an ineligible person in your Will, the beneficiaries must consent by Affidavit — which is the same result as if you had no Will at all.

3. Wills are frequently lost — In Re: Estate of Margaret Black (2004), the Washington State Supreme Court applied RCW 11.20.070 (Proof of Lost or Destroyed Will) to determine whether evidence was clear, cogent, and convincing. Lost Wills create litigation.

4. A Will is not required for probate — and there are advantages to probate without a Will. Not having a Will forces beneficiaries to communicate before a probate petition is filed. A Will does not require the Personal Representative to consult beneficiaries in advance.

5. The Intestacy Statute already does the work — Washington's Intestacy Statute is essentially a default Will for every resident. Your children share equally and automatically. You do not need a Will for that result.

6. The main reason to have a Will — to disinherit a child — is rare.

If you believe you absolutely must have a Last Will and Testament with two witnesses' notarized signatures, Christopher recommends finding counsel willing to sign and notarize with witnesses in person, and using the King County Will Repository — where Wills of living people can be kept for 100 years for $20.

Question 18

Can a Will override a trust or a deed that has already been recorded?

Accepted Answer

Yes — and this is one of the most dangerous traps in Washington estate planning.

RCW 11.11.020 (Disposition of Non-Probate Assets Under Will) allows a Will to potentially take precedence over a trust. Even if real property has been quitclaimed to a Trustee of a Trust, a Will may validly give that property to someone else.

The Washington Supreme Court decided exactly this in Manary v. Anderson (2013). Anderson was the beneficiary named in the Will; Manary was the Successor Trustee of the Trust. Anderson prevailed — the Will superseded the trust transfer.

This is a critical reason why Christopher's estate plans do not execute Wills. A Will in the wrong hands — or a Will that was not carefully coordinated with the trust — can undo years of careful planning and override the grantor's actual intent as expressed in the trust document.

Note: A Will does NOT supersede a Revocable Transfer on Death Deed for real property. The TOD Deed is safe from Will challenges; a trust transfer by quitclaim deed is not.

Question 19

How are trust assets distributed at the first spouse's death?

Accepted Answer

Washington Separate Property Trusts are structured to minimize estate tax at each death while preserving flexibility for the surviving spouse. The distribution scheme works in three tiers:

Tier 1 — Up to $3 million to the surviving spouse:
All trust assets up to $3 million are directed to the surviving spouse at the sole and absolute discretion of the surviving spouse — to be retained or disclaimed (Schedule A). The $3 million threshold corresponds to the Washington State Estate Tax exemption.

Tier 2 — The next $3 million in equal shares to children:
The rest, residue, and remainder of the trust estate up to $3 million is distributed at the surviving spouse's discretion as to form and manner (Schedule A), in equal shares, to the grantors' children — as Trustees of their own Separate Property Trusts, integrated with any Prenuptial or Postnuptial Agreements.

Tier 3 — Everything above $6 million to the surviving spouse:
Any amount above $6 million is distributed to the surviving spouse.

This structure keeps each spouse's taxable estate below the $3 million Washington Estate Tax threshold at each death — avoiding Washington Estate Tax twice.

Question 20

What is the age-25 rule for gifts to young beneficiaries?

Accepted Answer

Gifts to beneficiaries over age 25 are outright and free of trust — the beneficiary receives the assets directly with no restrictions.

Gifts to beneficiaries under age 25 are subject to the sole and absolute discretion of the Successor Trustee. The Successor Trustee determines the timing, form, and manner of distributions until the beneficiary reaches age 25.

This protects young beneficiaries from receiving a large inheritance before they have the maturity and life experience to manage it responsibly. The Successor Trustee can make distributions for education, health, support, and maintenance in the meantime.

Question 21

How does the TOD Deed home equity strategy work at the first spouse's death?

Accepted Answer

A Transfer on Death Deed is recorded transferring 50% of home equity to the separate property trust of each spouse. At the first spouse's death, the surviving spouse has three options for their deceased spouse's 50% share:

Option 1 — Transfer back to themselves:
The surviving spouse may transfer the 50% equity back to themselves so that they own the whole home outright.

Option 2 — Disclaim within 90 days:
The surviving spouse may leave the 50% equity in the deceased spouse's trust and disclaim it within 90 days of death. Doing so reduces the size of the surviving spouse's estate and gives an asset-protected gift to the beneficiaries at the time of the surviving spouse's death.

Option 3 — Income calculation:
The surviving spouse may include the 50% home equity in the calculation that allows 5% of net value to be paid from other assets — increasing the surviving spouse's income stream.

The disclaimer option is particularly powerful for estate tax planning: by disclaiming the 50% share, the surviving spouse keeps their own estate below the $3 million Washington Estate Tax threshold while passing an asset-protected inheritance to the children.

Question 22

What is a separate property trust and why does it matter in Washington?

Accepted Answer

In Washington's community property system, separate property — such as an inheritance, a pre-marital gift, or assets owned before marriage — can accidentally become community property if mixed with marital assets. A separate property trust keeps those assets clearly identified as separate, protecting them in the event of divorce or death. Washington does not allow portability of a deceased spouse's unused estate tax exemption, so separate trusts are also the primary tool for capturing both spouses' $3 million exemptions — effectively shielding up to $9 million from Washington State Estate Tax for $1,500 via Zelle.

Question 23

How do separate property trusts maximize Washington estate tax exemptions?

Accepted Answer

Washington's individual estate tax exemption is $3,000,000 (for deaths after July 1, 2026). Because Washington does not allow portability — the ability for a surviving spouse to use the deceased spouse's unused exemption — separate trusts 'capture' and use both spouses' exemptions, effectively protecting up to $9,000,000 from state estate taxes.

Washington Estate Tax Rates (deaths after July 1, 2026):
• No tax on the first $3 million
• $1–$1M above exemption: 10%
• $1M–$2M above exemption: 14% ($100,000 + 14% over $1M)
• $2M–$3M above exemption: 15% ($240,000 + 15% over $2M)
• $3M–$4M above exemption: 16% ($390,000 + 16% over $3M)
• $4M–$5M above exemption: 18% ($550,000 + 18% over $4M)
• $5M–$6M above exemption: 18% ($730,000 + 18% over $5M)
• $6M–$7M above exemption: 19% ($910,000 + 19% over $6M)
• $7M–$8M above exemption: 19.5% ($1,100,000 + 19.5% over $7M)
• $8M–$9M above exemption: 19.5% ($1,295,000 + 19.5% over $8M)
• Over $9M above exemption: 20% ($1,490,000 + 20% over $9M)

Note: The twelve states that levy a state estate tax are Connecticut, Hawaii, Illinois, Maine, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Vermont, Washington, and one other. Moving to a state without estate tax is one way to avoid it.

Question 24

How do separate property trusts protect children in blended families?

Accepted Answer

Separate property trusts are one of the most important tools for blended families. A spouse can place their separate assets in a trust that provides income for the surviving spouse during their lifetime, while guaranteeing the remaining principal eventually goes to the Grantor's own children — rather than the surviving spouse's heirs. Step-children are notoriously disinherited without this planning. Think of Cinderella: if her father had a separate trust, Cinderella would have had her own money and would not have been dependent on her stepmother. A separate property trust ensures your children receive what you intended for them.

Question 25

How does a separate property trust prevent commingling of assets?

Accepted Answer

In Washington's community property system, separate property can accidentally become community property if mixed with marital assets — a process called commingling. Holding separate assets in a separate property trust keeps them clearly identified and protected in the event of divorce or death. A Spousal Consent Form can be used to make naming your separate trust as Primary Beneficiary of a 401(k) valid, allowing you to give separate property, gifts, and inheritances to children or other beneficiaries rather than your surviving spouse.

Question 26

How do separate property trusts protect assets from creditors?

Accepted Answer

Because a separate property trust can be designed to become irrevocable upon one spouse's death, it can shield those assets from the surviving spouse's future creditors, lawsuits, or professional liability. The separate property of one spouse is not liable for the separate debts of the other spouse. If an LLC is held as Trustee of one spouse's separate trust, debts related to that LLC do not affect the assets in the other spouse's separate trust.

Question 27

How do separate property trusts support financial autonomy in a marriage?

Accepted Answer

Separate trusts allow each spouse to maintain control and management over their own specific businesses, inherited family real estate, or other individual assets without requiring the other spouse's consent for every transaction. For example, in one case a husband from Mexico was sending $500 a month to his mother in Mexico, which his wife resented — until they created two separate property trust accounts and deposited $500 into each every month. The wife's attitude changed completely: she told her husband it was fine if he gave more to his mother, because she had the exact same amount to do whatever she wanted with.

Question 28

What is a durable power of attorney?

Accepted Answer

A durable power of attorney is a legal document that authorizes a person you choose — your "agent" — to make financial decisions on your behalf. The word "durable" means it remains effective even if you become incapacitated. Without a durable power of attorney, your family may need to go to court to obtain a conservatorship to manage your finances — a process that can take months and cost thousands of dollars.

Question 29

What's the difference between a financial POA and a healthcare POA?

Accepted Answer

A financial power of attorney covers financial and legal matters — managing bank accounts, paying bills, filing taxes, selling real estate, and handling investments. A healthcare power of attorney (also called a healthcare proxy) covers medical decisions — consenting to or refusing treatments, choosing healthcare providers, and directing your care if you're unable to speak for yourself. Both documents are essential components of a complete estate plan.

Question 30

Can I limit what my agent can do under a power of attorney?

Accepted Answer

Absolutely. Powers of attorney can be drafted broadly (giving your agent wide authority) or narrowly (limiting authority to specific transactions or time periods). We work with you to define the scope of authority that makes sense for your situation and your level of trust in your chosen agent. We also include safeguards — such as requiring accountings or limiting gifting authority — to protect against potential misuse.

Question 31

What law governs a Washington General Durable Financial Power of Attorney?

Accepted Answer

Washington's General Durable Financial Power of Attorney is governed by the Uniform Power of Attorney Act, RCW § 11.125, which is incorporated by reference into the document itself.

The document revokes all prior Washington State General Durable Financial Powers of Attorney the principal may have signed. The agent is given a Power of Appointment to name another agent as necessary to carry out the principal's wishes if no other agent or attorney-in-fact is named.

Question 32

What does "durable" mean — does the POA remain valid if I develop dementia or Alzheimer's?

Accepted Answer

Yes. Pursuant to RCW § 11.125.040, a Durable Power of Attorney shall not be affected by the disability of the principal. This means that as long as the principal understood the document when they signed it, the document remains valid even if the principal later develops dementia or Alzheimer's and can no longer recognize their agents.

This is one of the most important features of a properly drafted Durable POA — it ensures your chosen agent can continue to act on your behalf precisely when you need them most.

Question 33

What are the fiduciary duties of an agent under a Financial Power of Attorney?

Accepted Answer

An agent under a Financial Power of Attorney owes the principal the highest fiduciary duties, including:

• Duty of Care — the agent must care for and preserve the property of the principal as if it were their own
• Duty of Loyalty — the agent is not allowed to engage in self-dealing, meaning they cannot take into account their own interests instead of being solely focused on the interests of the principal
• Duty to Account — the agent must make an accounting to all beneficiaries

The Power of Attorney applies to assets in the name of the principal personally as well as any trust the principal may have — so long as all funds are spent for the benefit of the principal and the principal's children, if any.

Question 34

What specific financial powers does the agent have under a Washington General Durable POA?

Accepted Answer

The agent/attorney-in-fact has the power in the principal's name, place, and stead to have and exercise full power and authority to do and perform all and every act and thing whatsoever necessary to be done under the circumstances, as fully to all intents and purposes as the principal might or could do if personally present — including, but not limited to:

• Make deposits to, and payments from, any account in the principal's name in any financial institution
• Open and remove items from any safe deposit box in the principal's name
• Sell, exchange, or transfer title to stocks, bonds, or other securities
• Sell, convey, or encumber any real or personal property
• Apply for and manage governmental benefits, including Medicaid

All acts performed by the attorney-in-fact pursuant to this Power are ratified and confirmed by the principal.

Question 35

What is the Medicaid look-back period and how does it affect the Financial POA?

Accepted Answer

The Medicaid 'reachback' or look-back period for recovery applies to assets transferred for less than fair market value within 60 months (5 years) before a Medicaid application. Transfers made within this window can result in a period of Medicaid ineligibility.

The agent under a Financial Power of Attorney may apply for and manage any government benefits — including Medicaid — on the principal's behalf. However, any transfers of assets made by the agent must be carefully evaluated in light of the 5-year look-back period to avoid inadvertently disqualifying the principal from Medicaid eligibility.

Warning: Medicaid planning is complex and the rules change frequently. Consult an elder law attorney before making any transfers of assets.

Question 36

Can a Financial POA restrict the agent's ability to make gifts?

Accepted Answer

Yes — and this is an important customization that Christopher builds into Financial Powers of Attorney where appropriate. A POA can expressly prohibit the agent from gifting any of the principal's assets to anyone, with a narrow exception for gifts made for the purpose of avoiding estate tax.

This gifting restriction protects the principal's estate from an agent who might otherwise transfer assets to themselves or family members — which would constitute self-dealing and a breach of fiduciary duty. Without an express restriction, Washington law gives agents broad authority that could include gifting in some circumstances.

The estate tax exception is intentional: it preserves the agent's ability to make annual exclusion gifts (currently $19,000 per recipient per year under federal law) or other transfers that reduce the taxable estate — a legitimate and valuable planning tool for larger estates — while prohibiting all other gifting.

If you want your agent to have gifting authority beyond the estate tax exception, that must be expressly authorized in the document.

Question 37

What law governs a Washington General Durable Health Care Power of Attorney?

Accepted Answer

Washington's General Durable Health Care Power of Attorney is governed by RCW § 11.125 (the Uniform Power of Attorney Act), incorporated by reference into the document. The document revokes all prior Washington State General Durable Health Care Powers of Attorney the principal may have signed.

The agent and health care proxy are given a Power of Appointment to name another agent as necessary to carry out the principal's wishes if no other agent is named.

Pursuant to RCW 11.125.400, the agent is authorized to:
• Make all health care decisions for the principal
• Provide, withhold, or withdraw consent to any treatment for any physical or mental condition
• Apply for public benefits to defray the cost of health care
• Access the principal's medical records
• Authorize admission to or transfer from a health care facility
• Carry out any other wishes to the extent they are known to the agent

Question 38

Does the Healthcare POA remain valid if I develop dementia or lose capacity?

Accepted Answer

Yes. Pursuant to RCW § 11.125.040, the validity of a General Durable Health Care Power of Attorney shall not be affected by the incapacitation of the principal. As long as the principal understood the document when they signed it, the document remains valid even if the principal later develops dementia or Alzheimer's and can no longer recognize their agents.

This includes, without limitation, full power to give or refuse consent to all medical, surgical, hospital, and other types of health care.

The agent's power shall cease when the principal regains capacity to make health care decisions.

Question 39

What are the agent's liability protections under a Healthcare POA?

Accepted Answer

The principal's estate shall hold harmless and indemnify the agent from all liability for acts or omissions done in good faith. This protection encourages agents to act decisively on the principal's behalf without fear of personal liability for difficult medical decisions made in good faith.

Question 40

Does the Healthcare POA authorize access to medical records under HIPAA?

Accepted Answer

Yes. Under the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, the Healthcare POA includes an express authorization for the release of any and all complete health records and health information about the principal to any and all health care agents — during the principal's life and for up to one year after death.

Without this HIPAA authorization, health care providers may refuse to share medical records with the agent, even if the agent has a valid Healthcare POA. The HIPAA release is an essential component of a properly drafted Healthcare POA.

Question 41

How does the agent make health care decisions on my behalf?

Accepted Answer

The agent has complete authority to make health care decisions to the same extent the principal could make them if capable. The decision-making hierarchy is:

1. Follow the principal's express directions in the document
2. Follow any wishes the principal has made known to the agent in another way
3. If the principal is able to communicate in any way, the agent should attempt to discuss health care choices with the principal before deciding
4. If the principal has not expressed a choice about the health care in question, the agent shall decide based upon the agent's knowledge of the principal's values
5. If the agent does not know the principal's values, the agent shall decide based upon what the agent believes to be in the principal's best interest

This hierarchy ensures that the principal's own voice — expressed or known — always takes precedence over the agent's independent judgment.

Question 42

Can I include organ donation wishes in my Healthcare POA?

Accepted Answer

Yes. The Healthcare POA includes an express authorization for the principal to consent to registration on the Washington State Organ Donor Registry under RCW § 68.24.200 and the Revised Uniform Anatomical Gift Act (RCW 68.64).

The document records the principal's specific wishes, including:
• A wish to donate any needed organs or tissues for which the principal is a candidate donor upon death
• A wish not to donate the body to science
• A wish that the body or any part of the body not be used for any non-scientific purpose such as entertainment, public display, or profit

The principal asks that both the Health Care Agent and family honor these wishes. Including organ donation directives in the Healthcare POA ensures the principal's wishes are legally documented and communicated to the agent who will be present at the time of death.

Question 43

How does the agent sign documents under a Healthcare POA?

Accepted Answer

When exercising the Healthcare Power of Attorney, the agent shall sign the principal's name followed by the printed words:

"by [Agent's name], Attorney in Fact for [Principal's name]"

For example: "Jane Marie Doe, by John David Doe, Attorney in Fact for Jane Marie Doe."

A copy of the General Durable Health Care Power of Attorney must be attached to any document signed by the agent in this capacity.

Question 44

How is the Healthcare POA notarized — and what is Remote Online Notarization (RON)?

Accepted Answer

All documents at Mulvaney Law Offices are signed and notarized via DocuSign in a Zoom meeting — a process called Remote Online Notarization (RON), authorized in Washington State under Senate Bill 5641, RCW § 45.280, and WAC 308-30-310.

Christopher S. Mulvaney is a Notary Public in the State of Washington, residing in Bellevue, WA, with a commission expiring September 1, 2028. He certifies that he has satisfactory evidence of the principal's identity, that the principal appeared before him via audio-visual communication (Zoom/DocuSign), signed and attested the instrument, and acknowledged it to be a free and voluntary act for the uses and purposes mentioned in the document.

RON allows the entire signing and notarization process to be completed remotely — no in-person office visit required. All meetings, electronic signing, and Remote Online Notarization are done via Zoom (Meeting ID: 365 929 7112, Passcode: MeetMulv).

Question 45

What is a Power of Attorney and what are the two main types used in estate planning?

Accepted Answer

A Power of Attorney is the appointment of one person — the Agent or Attorney-in-Fact — to act on behalf of another person — the Principal — in a Principal-Agent relationship. The appointment does not have to be accepted; the Agent may renounce it.

There are many types of specific or limited Powers of Attorney. The two general types of durable Powers of Attorney common in estate planning are:

1. Financial Power of Attorney — authorizes the Agent to handle financial matters: managing bank accounts, paying bills, filing taxes, selling real estate, handling investments, and applying for government benefits including Medicaid

2. Healthcare Power of Attorney — authorizes the Agent to communicate with doctors, nurses, and other medical care providers about the principal's care, and to sign consent forms when the principal is unable to do so

Powers of Attorney can apply when you are incapacitated. This means they are more likely to benefit you personally during your lifetime than your Will or Trust — which are primarily designed to benefit your heirs after your death.

Washington's Uniform Power of Attorney Act (RCW § 11.125) provides a good explanation of the legal framework governing these documents.

Question 46

How does a Financial POA work between spouses?

Accepted Answer

Between spouses, a Financial Power of Attorney is often made effective immediately — not just upon incapacity — as a practical convenience. This allows one spouse to sign for both in financial transactions without requiring the other to be present.

Examples of when this is useful:
• One spouse is traveling and a document needs to be signed
• One spouse handles the household finances and needs authority to act on joint accounts
• A real estate closing requires both signatures but only one spouse can attend

Having an alternate Agent for finances — someone other than the spouse — is also important. If both spouses are incapacitated simultaneously, or if the spouse is unavailable, the alternate Agent can step in and decrease the likelihood of a contested guardianship proceeding.

Question 47

What is a living will, and why do I need one?

Accepted Answer

A Living Will — also called an Advance Health Care Directive — is one of the most important elements of a comprehensive estate plan. It serves two distinct functions:

1. Health Care Power of Attorney — names someone you trust to act as your Agent or decision-maker should you become unable to make or communicate your own decisions
2. Advance Directive — documents your specific wishes about life-sustaining treatment so your agent and family are never left guessing

A Living Will applies when you are in a coma, doctors do not believe you will come out of it, you are on life support, and you have a feeding tube and IV fluid. You indicate:
• Whether you want to authorize your agent to sign the waivers and releases to withdraw life support
• Whether you want the feeding tube and/or IV fluid removed if you are able to breathe once life support is withdrawn

Many people remember the Terri Schiavo case — in which a husband litigated with his wife's parents for 15 years, all the way to the United States Supreme Court, over who should have control and what should be done. Sunny Von Bulow died after almost 28 years in a coma. A Living Will can prevent such tragedies by making your wishes legally binding and designating a single decision-maker with clear authority.

The Washington State Hospital Association publishes a 50-page End of Life Care Manual. The National Council on Aging also provides guidance on the difference between a Living Will and a Trust.

Question 48

What happens if I don't have a healthcare power of attorney?

Accepted Answer

Without a healthcare power of attorney, Washington State law determines who can make medical decisions for you — and the order of priority may not match your wishes. More importantly, if family members disagree about your care, there is no designated decision-maker with legal authority to resolve the dispute. This can lead to conflict, delays in care, and in some cases, court intervention. A healthcare power of attorney prevents all of this.

Question 49

Can I change my advance directive after I sign it?

Accepted Answer

Yes. You can revoke or update your advance directive at any time, as long as you have the mental capacity to do so. We recommend reviewing your healthcare documents every few years or after any significant change in your health, your family situation, or your wishes. We make the update process straightforward and affordable for our clients.

Question 50

What is a Mental/Behavioral Health Advance Healthcare Directive (MHAD) and do I need one?

Accepted Answer

A Mental/Behavioral Health Advance Healthcare Directive (MHAD) is a separate legal document — distinct from a standard Living Will or Healthcare POA — that records your wishes specifically regarding mental health, behavioral health, and addiction treatment. It is authorized under Washington's Mental/Behavioral Health Advance Healthcare Directive Act, RCW § 71.32.260.

The MHAD allows your Agent/Attorney-in-Fact to:
• Obtain medical information about you specific to mental/behavioral health including addiction (examples: depression, anxiety, alcohol, opioids)
• Sign forms necessary for your care in those areas if you are not able to do so yourself
• Voluntarily admit you to inpatient treatment for up to 14 days — but only if you expressly authorize this in the document

The MHAD also allows you to:
• Direct your mental health care in advance, while you have capacity
• Specify treatments you consent to or refuse
• Ensure your choices are honored even if you later lack capacity to express them

If a guardian is appointed by a court to make mental/behavioral health decisions for you, the MHAD takes precedence over all other means of ascertaining your intent.

Children as young as 13 can execute a MHAD in Washington.

Washington Law Help has prepared a summary of the kind of detail that can be added to the form. The Substance Abuse and Mental Health Services Administration (SAMHSA) has published a 44-page Practical Guide to Psychiatric Advance Directives.

The document revokes all prior Washington State Mental Health, Behavioral Health, and Addiction Advance Healthcare Directives you may have signed. It remains valid and in effect for an indefinite period of time.

Question 51

What is Ricky's Law and how does it affect involuntary commitment for substance use?

Accepted Answer

Ricky's Law (HB 1713) amended RCW § 71.05 to allow the State of Washington to involuntarily detain adults and minors who are at risk of harming themselves or others due to a substance use disorder. The law was passed in 2016 and went into effect on April 1, 2018.

Key provisions:
• Designated mental health professionals may detain a person who meets the criteria for involuntary treatment due to a substance use disorder to a secure withdrawal management and stabilization facility — if space is available
• Designated Crisis Responders are required to place people in specific medical facilities if they are at imminent risk or danger to themselves or others, or are unable to care for their own basic needs
• The law designates nine facilities for involuntary commitment

The law is named after Ricky Garcia, a suicide survivor who believes he could have been helped sooner if Washington had involuntary commitment for substance use disorders.

Involuntary admission under RCW § 71.05 — whether for mental health or substance use — requires two mental health professionals to certify that the individual is a clear and present danger to themselves or others. An initial civil inpatient commitment can be for 72 hours before a court hearing is required to extend it.

This is separate from and not controlled by the MHAD or the agent's authority.

Question 52

How do I revoke a Mental/Behavioral Health Advance Healthcare Directive?

Accepted Answer

Revocation of a Mental/Behavioral Health Advance Healthcare Directive must be in writing. An oral revocation is not sufficient under RCW § 71.32.260.

This is different from a standard advance directive, which can often be revoked orally. Because of the specific statutory requirements, it is important to execute a written revocation and provide copies to your health care providers and agent if you wish to change your mental health care directives.

Question 53

Are there circumstances where a provider does not have to follow my MHAD?

Accepted Answer

Yes. There are some circumstances where a provider may not have to follow — and may be precluded from following — your MHAD or your agent's directive. These include situations where following the directive would conflict with:

• Medical ethics standards
• Federal law
• State law

In those circumstances, the provider is not required to comply with the directive. This is an important limitation to understand: a MHAD is a powerful expression of your wishes, but it does not override a provider's legal or ethical obligations.

Question 54

Can my agent consent to inpatient mental health or addiction treatment on my behalf?

Accepted Answer

No — not without your express authorization in the MHAD. The principal may specifically withhold consent for voluntary admission to inpatient mental/behavioral health or addiction treatment for the statutory maximum of fourteen (14) days. Inpatient means you sleep at the hospital — examples include alcohol and drug rehabilitation or suicide watch for clinical depression.

Additionally, an agent is not authorized to consent to:
• Electroconvulsive therapy (ECT)
• Psychosurgery
• Other psychiatric or mental health procedures that restrict physical freedom of movement

These restrictions protect the principal's bodily autonomy and ensure that the most serious and irreversible mental health interventions require the principal's own prior consent — not a delegated decision.

Question 55

What is involuntary admission for mental health treatment in Washington?

Accepted Answer

Involuntary admission — also called involuntary commitment — is different from voluntary admission and is not controlled by the MHAD or the agent's authority. Involuntary admission requires two mental health professionals to certify that the individual is a clear and present danger to themselves or others under RCW § 71.05. An initial civil inpatient commitment can be for 72 hours before a court hearing is required to extend the commitment.

Ricky's Law (HB 1713) expanded this framework to include substance use disorders — see the separate FAQ entry on Ricky's Law for details.

Because involuntary admission is a legal process initiated by mental health professionals and courts — not by the agent — it operates independently of the MHAD.

Question 56

Why does estate planning include a Mental/Behavioral Health Advance Directive — is this really part of estate planning?

Accepted Answer

Yes — and it is one of the most meaningful parts.

Awareness of the possible need for potentially life-saving intervention for drug or alcohol rehabilitation or suicidal depression is important. By thinking carefully about the possibility of being affected by mental and behavioral health issues — including addiction — people become more sensitive to the struggles of others.

Part of estate planning is about increasing gratitude, compassion, and kindness. The process of documenting your wishes forces a kind of reflection that most people never undertake: What would I want if I could not speak for myself? Who do I trust? What do I value?

That reflection — and the conversations it prompts with family members — is itself a gift. Christopher includes the MHAD as a standard part of every comprehensive estate plan for exactly this reason.

Question 57

Can a minor execute a Mental/Behavioral Health Advance Healthcare Directive in Washington?

Accepted Answer

Yes. Under Washington law, children as young as thirteen (13) years old can execute a Mental/Behavioral Health Advance Healthcare Directive (MHAD). This is a notable exception to the general rule that minors cannot execute legal documents — reflecting the legislature's recognition that adolescents may have meaningful and informed preferences about their own mental health care.

This is particularly relevant for families with teenagers who have experienced mental health challenges and want to ensure their treatment preferences are documented and respected.

Question 58

What is a POLST and how does it differ from a Living Will or Healthcare POA?

Accepted Answer

A POLST (Physician Orders for Life-Sustaining Treatment) is a set of actual medical orders — signed by both a physician, ARNP, or PA-C and the patient or their legal surrogate — that guide medical treatment based on the person's current medical condition and goals. It is not a planning document like a Living Will; it is an active order that EMS, hospitals, and care facilities must follow immediately.

Key differences:
• A Living Will / Advance Directive is a planning document that expresses your wishes in advance and names a healthcare agent. It is appropriate for any adult regardless of health status.
• A Healthcare POA designates who speaks for you when you cannot speak for yourself.
• A POLST is a physician's order that translates those wishes into specific, immediately actionable medical instructions. It is typically used for people with serious illness, advanced age, or frailty — where a medical crisis is foreseeable.

Critical rule: The POLST does not replace an advance directive. Both documents should exist and be consistent with each other. If there is a conflict, the most recent POLST replaces all previous physician orders — but the advance directive remains in effect for decisions not covered by the POLST.

Photocopies and faxes of signed POLST forms are legal and valid. The original form must travel with the person whenever they are transferred or discharged. For more information visit wsma.org/polst.

Question 59

What are the four sections of a Washington POLST form and how do I complete them?

Accepted Answer

A Washington POLST form has four sections. Any section not completed implies full treatment for that section.

Section A — Cardiopulmonary Resuscitation (CPR): Applies when the person has no pulse and is not breathing.
• Attempt Resuscitation / CPR
• Do Not Attempt Resuscitation / DNAR (Allow Natural Death) — choosing DNAR includes appropriate comfort measures. No defibrillator should be used on a person who has chosen DNAR.

Section B — Medical Interventions: Applies when the person has a pulse and/or is breathing (not in cardiac arrest).
• Full Treatment: Primary goal of prolonging life by all medically effective means. Includes intubation, advanced airway interventions, mechanical ventilation, cardioversion, hospital transfer, and intensive care.
• Selective Treatment: Goal of treating medical conditions while avoiding burdensome measures. Use medical treatment, IV fluids, and cardiac monitor as indicated. Do not intubate. May use less invasive airway support (CPAP, BiPAP). Hospital transfer if indicated; avoid intensive care if possible.
• Comfort-Focused Treatment: Primary goal of maximizing comfort. Relieve pain and suffering with medication by any route as needed. Use oxygen, oral suction, and manual treatment of airway obstruction for comfort. Patient prefers no hospital transfer — EMS may contact medical control to determine if transport is needed to provide adequate comfort.

Section C — Medically Assisted Nutrition: Oral fluids and nutrition must always be offered if medically feasible.
• No medically assisted nutrition by tube
• Trial period of medically assisted nutrition by tube
• Long-term medically assisted nutrition by tube

Section D — Additional Orders: Space for orders regarding dialysis, blood products, implanted cardiac devices, antibiotics, and other specific interventions. Options for antibiotics include: use for prolongation of life, or use only when needed for symptom management.

Signatures required: The form must be signed by both a physician/ARNP/PA-C and the patient or their legal surrogate to be valid. If signed by a surrogate, the patient must be decisionally incapacitated. Verbal orders are acceptable with follow-up signature by the physician/ARNP/PA-C.

Review triggers: The POLST should be reviewed whenever (1) the person is transferred between care settings, (2) there is a substantial change in health status, or (3) the person's treatment preferences change. To void the form, draw a line through 'Physician Orders' and write 'VOID' in large letters.

Question 60

What are the 2026 financial eligibility limits for Long-Term Care Medicaid (Apple Health) in Washington?

Accepted Answer

To qualify for Long-Term Care (LTC) Medicaid — called Apple Health in Washington — you must meet these 2026 thresholds:

• Asset Limit: $2,000 for a single individual; $3,000 for a married couple
• Income Limit: $2,982 per month for Institutional / Nursing Home care
• Home Equity Limit: Your primary residence is exempt if your equity interest is below $1,130,000 and you (or a spouse or dependent) live there

Spousal protections (when only one spouse needs care):
• Community Spouse Resource Allowance (CSRA): The at-home spouse may keep up to $162,660 in assets
• Monthly Income Allowance: The at-home spouse may keep up to $4,066 per month in income

Note: Medicaid rules are highly technical and change frequently. Consult a local elder law attorney or use Washington Healthplanfinder to verify your specific eligibility. Christopher S. Mulvaney is not a Medicaid specialist — the Financial Power of Attorney he drafts includes the power to apply for and manage Medicaid benefits on your behalf.

Question 61

What is a Medicaid Asset Protection Trust (MAPT) and how does the 5-year look-back work?

Accepted Answer

A Medicaid Asset Protection Trust (MAPT) is an irrevocable trust that can shield assets — such as real estate and savings — from being counted toward the Medicaid asset limit. Once assets are transferred into a MAPT, they are no longer owned by the applicant and are therefore not countable for Medicaid eligibility purposes.

The 5-year look-back rule:
The MAPT must be established at least 60 months (5 years) before you apply for Medicaid. Any assets transferred for less than fair market value within that 60-month window can result in a period of Medicaid ineligibility — a penalty proportional to the value of the transferred assets.

This is why early planning matters: a MAPT created at age 60 or 65 can protect significant assets by the time long-term care is needed in your 70s or 80s. Waiting until a health crisis occurs is often too late to use this strategy.

Warning: MAPT planning is a specialty area of elder law. Consult an elder law attorney before making any transfers of assets.

Question 62

What is the WA Cares Fund and how does it interact with Medicaid in 2026?

Accepted Answer

The WA Cares Fund is Washington State's public long-term care insurance program, funded by a payroll tax on Washington workers. In 2026, eligible Washingtonians can access a lifetime benefit of up to $36,500 (inflation-adjusted annually) to pay for long-term care services.

Key 2026 dates:
• Statewide launch: Full benefits become available July 1, 2026
• Pilot program: Lewis, Mason, Spokane, and Thurston counties began a pilot in January 2026

How WA Cares interacts with Medicaid:
• Order of payment: Medicaid is always the payer of last resort — you must use WA Cares benefits first
• No impact on Medicaid eligibility: WA Cares is treated like a third-party payer (similar to private insurance) and does not count toward your income or asset limits
• Bridge to eligibility: The $36,500 benefit can cover roughly one year of 20-hour-per-week in-home care, allowing you to preserve savings longer before needing to spend down to the $2,000 Medicaid asset limit
• Bridge during look-back: WA Cares can pay for professional care while you are in the 5-year look-back period for a MAPT

To qualify in 2026, you must need help with at least three activities of daily living (bathing, medication management, eating, etc.) and meet one of two contribution pathways:
• Temporary Path: Contributed for at least 3 of the last 6 years at the time of application
• Transition Path: If born before 1968, you earn 10% of the full benefit for every year you contributed

Question 63

What are the legal spend-down strategies for Medicaid eligibility?

Accepted Answer

If you exceed the Medicaid asset limit and need care now, you can legally reduce countable assets through a spend-down — converting countable assets into exempt assets or paying off debts. Common strategies:

• Home improvements: Renovating for accessibility (ramps, grab bars, safety features) converts countable cash into exempt home equity
• Vehicle upgrades: You are allowed one exempt vehicle of any value — upgrading an old car is a common strategy
• Prepaid funeral: Funds in an irrevocable burial trust are exempt
• Paying off debt: Settling a mortgage, credit cards, or medical bills reduces countable assets

Other programs to consider:
• Community First Choice (CFC): An entitlement program for those who want to receive care at home or in an assisted living facility rather than a nursing home
• Tailored Supports for Older Adults (TSOA): Designed for those not yet financially eligible for full Medicaid — has a much higher asset limit of $84,354 in 2026

Warning: Spend-down strategies must be carefully structured to avoid violating the 5-year look-back rule. Transfers for less than fair market value — even to family members — can trigger a penalty period. Consult an elder law attorney before taking any action.

Question 64

Is Washington a community property state? How does that affect my estate plan?

Accepted Answer

Yes — Washington is one of nine community property states. This means that most assets acquired during a marriage are owned equally by both spouses, regardless of whose name is on the account or title. This has significant implications for estate planning, particularly for blended families, couples with separate property from before the marriage, and business owners. We account for Washington's community property rules in every plan we draft.

Estate Planning FAQ

MetLife Legal Plans — Coverage

Getting Started

Trusts & Wills

Separate Property Trusts

Powers of Attorney

Healthcare & End-of-Life Planning

Medicaid & Long-Term Care Planning

Washington State Law

Transfer on Death Deeds (TOD Deeds)

Payable on Death (POD) Designations

Deed Recording

Tenancy in Common (TIC) vs. Joint Tenancy (JTWROS)

Planning for Young Adults

Adoption

Disclaimer Sub-Trust (Trust B)

Revocable Living Trust — Formation & Foundational Provisions

Certification of Trust (RCW 11.98.075)

Trustee Powers (Article X — RCW 11.98)

Spendthrift Clause in a Revocable Living Trust

Trust Protector

Beneficiary Sub-Trusts & Schedule A

Non-Grantor Trusts & Washington 2025 Tax Law

Step-Up in Basis, Capital Gains & Estate Tax Planning

Special Needs Trusts (SNT)

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Corporate Trustee — MEMBERS® Trust Company / BECU Trust Services

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