Difference between revisions of "Powers of Attorney in Pennsylvania"
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Effective: January 1, 2015 | Effective: January 1, 2015 | ||
20 Pa.C.S.A. § 5601 | 20 Pa.C.S.A. § 5601 | ||
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“Good faith.” Honesty in fact. | “Good faith.” Honesty in fact. | ||
</pre> | </pre> | ||
| + | =Overview= | ||
| + | Powers of Attorney implicate Policy coverage under Covered Risks 2(a)(i) and 2(a)(v) of the Owners and Loan Policies. Powers of Attorney in Pennsylvania are governed by [https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=20&div=0&chpt=56 Title 20, Chapter 56] of the Pennsylvania Probate, Estates and Fiduciaries Code. 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<ref>See 20 Pa.C.S. 5601(c)</ref> (for all POAs executed after 4/12/2000; language updated 1/1/15) | ||
| + | # Agent Acknowledgment signed by Agent<ref>See 20 Pa.C.S. 5601(d)</ref> (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 an individual who signed the POA on behalf of and at the direction of the Principal, neither may by the Notary. | ||
| + | # 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.<ref>See 20 Pa.C.S. 5601.4, 5603</ref> | ||
| + | # 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.<ref>See 20 Pa.C.S. 5606</ref> | ||
| + | # Recording of the POA is not strictly required, but is the accepted best practice and POAs are expressly recordable by statute.<ref>See 20 Pa.C.S. 5602(c)</ref> 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.<ref>See 20 Pa.C.S. 5601.1</ref> Durable POAs are not affect by disability or lapse of time.<ref>See 20 Pa.C.S. 5604</ref> | ||
| + | |||
| + | ==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:<br> | ||
| + | ...<br> | ||
| + | (5) Delegate authority granted under the power of attorney.<br> | ||
| + | ...<br> | ||
| + | (7) Exercise fiduciary powers that the principal has authority to delegate."<ref>See 20 Pa.C.S. 5601.4(a)</ref> | ||
| + | |||
| + | |||
| + | ==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.<ref>See 20 Pa.C.S. 5611(1)</ref></br> | ||
| + | </br> | ||
| + | A military POA that complies with 10 U.S.C. 1044(b) is also valid in Pennsylvania.<ref>See 20 Pa.C.S. 5611(2)</ref> | ||
Latest revision as of 10:44, 3 May 2023
Effective: January 1, 2015 20 Pa.C.S.A. § 5601 § 5601. General provisions Currentness (a) General rule.--In addition to all other powers that may be delegated to an agent, any or all of the powers referred to in section 5602(a) (relating to form of power of attorney) may lawfully be granted in writing to an agent and, unless the power of attorney expressly directs to the contrary, shall be construed in accordance with the provisions of this chapter. (b) Execution.-- (1) A power of attorney shall be dated, and it shall be signed by the principal by signature or mark, or by another individual on behalf of and at the direction of the principal if the principal is unable to sign but specifically directs another individual to sign the power of attorney. (2) If the power of attorney is executed by mark or by another individual, then it shall be witnessed by two individuals, each of whom is 18 years of age or older. A witness shall not be the individual who signed the power of attorney on behalf of and at the direction of the principal. (3) For a power of attorney executed on or after the effective date of this paragraph,1 the signature or mark of the principal, or the signature of another individual signing a power of attorney on behalf of and at the direction of the principal, shall be: (i) Acknowledged before a notary public or other individual authorized by law to take acknowledgments. The notary public or other individual authorized by law to take acknowledgments shall not be the agent designated in the power of attorney. (ii) Witnessed by two individuals, each of whom is 18 years of age or older. A witness shall not be the individual who signed the power of attorney on behalf of and at the direction of the principal, the agent designated in the power of attorney or the notary public or other person authorized by law to take acknowledgments before whom the power of attorney is acknowledged. Nothing in this section shall prohibit an acknowledgment of a power of attorney before a member of the bar of the Pennsylvania Supreme Court in the manner authorized by 42 Pa.C.S. § 327(a) (relating to oaths and acknowledgments) certified in the manner provided by 57 Pa.C.S. § 316(2.1) (relating to short form certificates) provided the attorney taking the acknowledgment does not act as one of the two witnesses required by this paragraph. (c) Notice.--All powers of attorney shall include the following notice in capital letters at the beginning of the power of attorney. The notice shall be signed by the principal. In the absence of a signed notice, upon a challenge to the authority of an agent to exercise a power under the power of attorney, the agent shall have the burden of demonstrating that the exercise of this authority is proper. NOTICE The purpose of this power of attorney is to give the person you designate (your “agent”) broad powers to handle your property, which may include powers to sell or otherwise dispose of any real or personal property without advance notice to you or approval by you. This power of attorney does not impose a duty on your agent to exercise granted powers, but, when powers are exercised, your agent must use due care to act for your benefit and in accordance with this power of attorney. Your agent may exercise the powers given here throughout your lifetime, even after you become incapacitated, unless you expressly limit the duration of these powers or you revoke these powers or a court acting on your behalf terminates your agent's authority. Your agent must act in accordance with your reasonable expectations to the extent actually known by your agent and, otherwise, in your best interest, act in good faith and act only within the scope of authority granted by you in the power of attorney. The law permits you, if you choose, to grant broad authority to an agent under power of attorney, including the ability to give away all of your property while you are alive or to substantially change how your property is distributed at your death. Before signing this document, you should seek the advice of an attorney at law to make sure you understand it. A court can take away the powers of your agent if it finds your agent is not acting properly. The powers and duties of an agent under a power of attorney are explained more fully in 20 Pa.C.S. Ch. 56. If there is anything about this form that you do not understand, you should ask a lawyer of your own choosing to explain it to you. I have read or had explained to me this notice and I understand its contents. (Principal) (Date) (d) Acknowledgment executed by agent.--An agent shall have no authority to act as agent under the power of attorney unless the agent has first executed and affixed to the power of attorney an acknowledgment in substantially the following form: I, .........., have read the attached power of attorney and am the person identified as the agent for the principal. I hereby acknowledge that when I act as agent: I shall act in accordance with the principal's reasonable expectations to the extent actually known by me and, otherwise, in the principal's best interest, act in good faith and act only within the scope of authority granted to me by the principal in the power of attorney. (Agent) (Date) (e) Deleted by 2014, July 2, P.L. 855, No. 95, § 1, effective Jan. 1, 2015. (e.1) Limitation on applicability generally.-- (1) Deleted by 2014, July 2, P.L. 855, No. 95, § 1, effective Jan. 1, 2015. (1.1) Subsections (b)(3), (c) and (d) and section 5601.3 (relating to agent's duties) do not apply to: (i) A power contained in an instrument used in a commercial transaction which authorizes an agency relationship. (ii) A power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a loan or other credit transaction. (iii) A power exclusively granted to facilitate transfer of stock, bonds and other assets. (iv) A power: (A) contained in the governing document for a corporation, partnership or limited liability company or other legal entity; (B) authorized by the law that governs the internal affairs of a legal entity; (C) by which a director, shareholder, partner, member or manager authorizes others to do things on behalf of the entity; or (D) contained in a proxy or other delegation to exercise voting rights or management rights with respect to a legal entity. (v) A warrant of attorney conferring authority to confess judgment. (vi) A power given to a dealer as defined by the act of December 22, 1983 (P.L. 306, No. 84),2 known as the Board of Vehicles Act, when using the power in conjunction with a sale, purchase or transfer of a vehicle as authorized by 75 Pa.C.S. § 1119 (relating to application for certificate of title by agent). (vii) A power created on a form prescribed by a Commonwealth agency, political subdivision or an authority or instrumentality of the Commonwealth or a political subdivision. (2) Powers and powers of attorney exempted by this subsection need not be dated. (3) Powers of attorney exempted by this subsection which are recorded in the office for the recorder of deeds under section 5602(c) shall be acknowledged before recording. (e.2) Limitation on applicability in health care and mental health care powers of attorney.--Subsections (b)(3)(i), (c) and (d) and section 5601.3 do not apply to a power of attorney which exclusively provides for health care decision making or mental health care decision making. (f) Definitions.--The following words and phrases when used in this chapter shall have the meanings given to them in this subsection unless the context clearly indicates otherwise: “Agent.” A person designated by a principal in a power of attorney to act on behalf of that principal. “Good faith.” Honesty in fact.
Contents
Overview
Powers of Attorney implicate Policy coverage under Covered Risks 2(a)(i) and 2(a)(v) of the Owners and Loan Policies. Powers of Attorney in Pennsylvania are governed by Title 20, Chapter 56 of the Pennsylvania Probate, Estates and Fiduciaries Code. 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 an individual who signed the POA on behalf of and at the direction of the Principal, neither may by the Notary.
- 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]
