Powers of Attorney in Pennsylvania
Contents
Citation
Powers of Attorney in Pennsylvania are governed by Title 20, Chapter 56 of the Pennsylvania Probate, Estates and Fiduciaries Code.
Overview
Powers of Attorney implicate Policy coverage under Covered Risks 2(a)(i) and 2(a)(v) of the Owners and Loan Policies. If a Power of Attorney is not yet executed, question why the Principal could sign a proposed POA but not the actual documents.
Underwriting
Sample Commitment Schedule B-I Requirement
If a Power of Attorney is to be used in this transaction, a copy of the Power of Attorney must be submitted for review and approval in advance of settlement. Also, if approved, the original Power of Attorney must be provided for recording.
General Requirements
- Notice signed by Principal[1] (for all POAs executed after 4/12/2000; language updated 1/1/15)
- Agent Acknowledgment signed by Agent[2] (for all POAs executed after 4/12/2000; language updated 1/1/15)
- Signed (or marked) and dated by Principal
- Principal's signature (or mark) notarized (for POAs executed after 1/1/15)
- Signed by two (2) Witnesses (for POAs executed after 1/1/15). Witnesses must be 18 years old, neither may be the Agent, neither may be: (1) an individual who signed the POA on behalf of and at the direction of the Principal, (2) the Notary, (3) an Agent named under the POA, or (4) an attorney taking an acknowledgment under 42 Pa.C.S. § 327(a).
- Principal must be competent at time of executing POA. If Principal has become incapacitated, date of incapacity should be determined to make sure the Principal was competent at time POA was signed. If in doubt, an Affidavit from a treating physician should be obtained.
- Principal must still be living, and not subject to Guardianship proceedings. POA is automatically terminated upon death, or could be terminated by a Guardian or by the Court in a Guardianship proceeding.
- Terms of POA must grant power to engage in the insured transaction.[3]
- Terms of POA must not contain an express expiration date which has passed.
- Agent should also sign an Affidavit of Non-Termination at the closing of the insured transaction.[4]
- Recording of the POA is not strictly required, but is the accepted best practice and POAs are expressly recordable by statute.[5] Likewise, many Recorder of Deeds may require the POA to be recorded in order to record the related Deed or Mortgage.
- If copy of POA was provided in advance of closing, original must also be reviewed to confirm it comports with the copy, unless the original has already been recorded.
Durability
Powers of Attorney are presumed durable unless specifically provided otherwise in the POA.[6] Durable POAs are not affect by disability or lapse of time.[7]
Delegation
"An agent under a power of attorney may do the following on behalf of the principal or with the principal's property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:
...
(5) Delegate authority granted under the power of attorney.
...
(7) Exercise fiduciary powers that the principal has authority to delegate."[8]
Foreign & Military POAs
A Power of Attorney executed in or under the laws of another state or jurisdiction is valid in Pennsylvania if it complies with the law of the jurisdiction indicated in the POA or where the POA was signed.[9]
A military POA that complies with 10 U.S.C. 1044(b) is also valid in Pennsylvania.[10]
