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