Finance
Instrument: Power of Attorney (POA)
What is it for?
The “power of attorney” (POA) allows an adult (the “principal”) to authorize another (the “agent”) to make decisions concerning the principal’s property and other matters.
What does it do?
A POA can empower an agent to do any or all of a lengthy list of items relating to management of the principal’s property, including borrowing money, receiving government benefits, engaging in real or personal property transactions, pursuing claims and litigation, and operating a business or entity. 20 Pa. Stat. and Cons. Stat. Ann. § 5603.
All POAs are presumed to be “durable,” meaning that the agent’s authority continues during a period when the principal lacks capacity. 20 Pa. Stat. and Cons. Stat. Ann. §§ 5601.1 & 5604.
In making decisions for the principal, the agent must act in good faith, only within the scope of the authority granted in the POA, and in accordance with the principal’s known expectations and in the principal’s best interest. 20 Pa. Stat. and Cons. Stat. Ann. § 5601.3(a).
Third parties must generally accept decisions made by the agent as if the principal had made them. They may, however, request the agent for an affidavit or a certification of the POA’s validity before relying on an agent’s authority. 20 Pa. Stat. and Cons. Stat. Ann. § 5608.1.
How does one make it?
A POA must be in writing must be dated and signed by the principal, notarized, and witnessed by two adults, neither of whom may be the principal or agent. The principal can either sign the POA, make a mark, or direct another individual to sign it on the principal’s behalf. 20 Pa. Stat. and Cons. Stat. Ann. § 5601(b).
Also, at the beginning of each POA there must be written in capital letters a statutory notice provided at 20 Pa. Stat. and Cons. Stat. Ann. § 5601(c).
Last, the agent must sign and affix the statutory form of acknowledgment before acting on the principal’s behalf. 20 Pa. Stat. and Cons. Stat. Ann. § 5601(d).
When does it come into effect?
An agent’s authority either takes effect immediately or at a specified future time or upon the occurrence of a specified contingency, including the disability or incapacity of the principal. In the latter case, the POA must specify the future time or occurrence when the agent’s authority becomes effective. 20 Pa. Stat. and Cons. Stat. Ann. § 5604.
How long does it last?
A POA is presumed to be durable unless specified in the POA document. Generally, unless otherwise specified a POA lasts until the principal dies, the principal revokes the POA, or a court acting on behalf of the principal terminates the agent’s authority. 20 Pa. Stat. and Cons. Stat. Ann. § 5601(c).
How does one end it?
Generally, an agent’s authority remains effective until the principal dies. Only if the POA is not durable, an agent’s authority ends if the principal becomes incapacitated. In either case, the agent’s authority ends only once the agent has notice of the principal’s death, incapacitation, or other terminating event. 20 Pa. Stat. and Cons. Stat. Ann. § 5605.
What does an example look like?
Pennsylvania does not provide a statutory POA form.
What else should one know?
Pennsylvania has adopted portions of the UPOAA but its POA differs in important ways.
Last updated November 2022
Education
No information available at this time.
Health
Instrument: Health Care Power of Attorney
What is it for?
A “health care power of attorney” (HCPOA) is an advance health care directive that allows an adult (the “principal”) to appoint one or more other adults (the “agent(s)”) to make health care decisions for the principal during periods when the principal is unable to do so.
What does it do?
The health care agent may make any decision on the principal’s behalf about the principal’s health care, which includes any care, treatment, service or procedure to maintain, diagnose, treat or provide for physical or mental health, custodial or personal care, including any medication program, therapeutical and surgical procedure and life-sustaining treatment. 20 Pa. Stat. and Cons. Stat. Ann. § 5422.
Health care decisions that the agent may make include but are not limited to:
(1) Selection and discharge of a health care provider.
(2) Approval or disapproval of a diagnostic test, surgical procedure or program of medication.
(3) Directions to initiate, continue, withhold or withdraw all forms of life-sustaining treatment, including instructions not to resuscitate.
(4) Admission to a medical, nursing, residential or similar facility, or entering into agreements for the individual’s care.
(5) Making anatomical gifts, or after the death of the individual, disposing of the remains or consenting to autopsies. 20 Pa. Stat. and Cons. Stat. Ann. § 5422.
A health care decision made by a health care agent for a principal does not require prior court approval. 20 Pa. Stat. and Cons. Stat. Ann. § 5454(e).
The agent must make decisions based on information on the principal’s prognosis and acceptable medical alternatives regarding diagnosis, treatments and supportive care, as well as consultation with the principal’s health care providers. The agent must also follow any instructions given by the principal when the principal had the capacity to understand, make and communicate health care decisions, including any written instructions in the HCPOA itself. 20 Pa. Stat. and Cons. Stat. Ann. § 5456(c).
How does one make it?
An HCPOA must be dated and signed by the principal while the principal is “of sound mind” and witnessed by two adults. The principal can either sign the HCPOA, make a mark, or direct another individual to sign it on the principal’s behalf. 20 Pa. Stat. and Cons. Stat. Ann. § 5452(b).
A principal may not appoint as an agent the principal’s attending physician, a health care provider, or an employee of a health care provider that the principal receives care from unless they are related to the principal. 20 Pa. Stat. and Cons. Stat. Ann. § 5455(b).
When does it come into effect?
Unless otherwise specified in the HCPOA, the agent’s authority comes into effect when a copy is provided to the attending physician and the attending physician determines that the principal is incompetent. 20 Pa. Stat. and Cons. Stat. Ann. § 5454(a).
“Competent” is defined as a condition in which an individual, when provided appropriate medical information, communication supports and technical assistance, is documented by a health care provider to do all three of the following things:
(1) Understand the potential material benefits, risks and alternatives involved in a specific proposed health care decision.
(2) Make that health care decision on his own behalf.
(3) Communicate that health care decision to any other person.
Note that individuals may be found competent to make some health care decisions, but incompetent to make others. 20 Pa. Stat. and Cons. Stat. Ann. § 5422.
Regardless of the principal’s mental or physical capacity, a principal may “countermand,” meaning object to, an agent’s decision to withhold or withdraw life-sustaining treatment at any time and in any manner by personally informing the attending physician. 20 Pa. Stat. and Cons. Stat. Ann. § 5457(d).
How long does it last?
Unless the HCPOA states a time of termination, the HCPOA lasts until it is revoked by either the principal, a court, or a court-appointed guardian authorized to do so. 20 Pa. Stat. and Cons. Stat. Ann. § 5454(d).
How does one end it?
While of sound mind, a principal may revoke a HCPOA either in a writing dated and signed by the principal and witnessed by two adults or by personally informing the attending physician, health care provider, or health care agent that the HCPOA is revoked. 20 Pa. Stat. and Cons. Stat. Ann. § 5459.
What does an example look like?
A statutory form is provided at 20 Pa. Stat. and Cons. Stat. Ann. § 5465. Another statutory form that combines the HCPOA with a living will is provided at 20 Pa. Stat. and Cons. Stat. Ann. § 5471.
What else should one know?
A health care provider, insurer, or other organization may not condition access to care, insurance, or other benefits on the execution of a HCPOA. 20 Pa. Stat. and Cons. Stat. Ann. § 5428.
Last updated November 2022
General
No information available at this time.