Wednesday, October 5, 2016

Pennsylvania Fine-Tunes Power of Attorney Law



Pennsylvania has revisited its law pertaining to the requirements for signing and notarization of powers of attorney.
HB 665 was signed by the Governor on October 4, 2016. It becomes Act 103 of 2016. The new law modifies Chapter 56 of Title 20 (the Decedent’s, Estate’s and Fiduciaries Code) and Title 57 (Notaries Public) of Pennsylvania Consolidated Statutes.  Here is a quick overview of the changes resulting from this new law.
Chapter 56 of Title 20 deals with powers of attorney other than advance health care directives.  (Chapter 56 was also modified earlier this year by Act 79 which was enacted in July).  
Chapter 56 Power of Attorney Execution Requirements
Section 5601 of Title 20 lays out formal rules that must be followed in signing powers of attorney in Pennsylvania. The new Act 103 specifies that:
  • A person who is signing a power of attorney for someone else cannot sign by mark;
  • A lawyer who takes the acknowledgement of the person signing the power of attorney cannot also be one of the required witnesses to the power of attorney. The notary law is clarified to do away with the implication that a lawyer who acknowledges a power of attorney must also be subscribing witnesses. [*Lawyers: see below for Jeff’s comment on this change].
  • Powers of attorney used in commercial transactions are exempt from many of the requirements of Chapter 56.    
Exemption of Some Powers of Attorney from Chapter 56 Requirements
Section 5601(e.1) of Act 103 exempts certain commercial and business oriented power of attorneys from some of the formalities required by Section 5601; and from various duties that are placed on an agent. This means that the power of attorney requirements of Chapter 56 regarding execution, notice, and acknowledgment, and the provisions specifying an agent’s duties do not apply to those types of power of attorney.
Section 5601(e.2) of HB 665 restates the exemption of powers of attorney that exclusively provide for health care decision making and mental health care decision making from many of the requirements of Chapter 56 (i.e. sections (b)(3)(i), (c) and (d) and section 5601.3).
The new law takes effect immediately. The exemptions set out in Section 5601(e) apply retroactively to January 1, 2015.  
Related Information
*Jeff’s comment.  The principal’s signature must be acknowledged before a notary public or other individual authorized by law to take acknowledgments. Section 5601(b)(3)(i). An acknowledgment may be taken by a lawyer who is a member of the bar of the Supreme Court of Pennsylvania if the document is thereafter certified to an officer authorized to administer oaths. (See 42 PA.C.S. § 327(a)). The statutory short form that is sufficient for this purpose is set out in 42 PA.C.S. § 316(2.1)) and is modified by Act 103.  
The principal’s signature must also be witnessed by two individuals. Section 5601(b)(3)(ii) provides that a witness shall not be the notary public or other person authorized by law to take acknowledgments before whom the power of attorney is acknowledged.
The lawyer may not serve in the dual role of taking the acknowledgment and serving as a required witness. If a notary is not available, the lawyer may take the acknowledgment (and then later certify), but may not also be one of the two required witnesses. Two other witnesses are required.
This prohibition may be inconvenient for lawyers. Prior to recent changes in the law, lawyers would sometimes both witness and acknowledge the principal’s signature (and have the document notarized at a later time). This was particularly helpful for lawyers in solo practice and where the power of attorney was signed as part of a home or nursing home visit. It reduced the number of people who needed to be involved. But the current Pennsylvania law opts for protection of the principal over convenience for the lawyer. If the notary is not present and the lawyer is taking the acknowledgment, there must be two other qualified witnesses.
To qualify a witness must be (1) 18 years of age or older, (2) not be the individual who signed the power of attorney on behalf of and at the direction of the principal, (3) not be the agent designated in the power of attorney; (4) not be the notary public or other person authorized by law to take acknowledgments before whom the power of attorney is acknowledged. Note that it appears that in many situations a spouse or child of the principal could be qualified to serve as a witness on the power of attorney so long as they meet the other requirements.

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