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New Power of Attorney Law in PA

On July 2, 2014, Governor Corbett signed a bill which makes significant changes to Pennsylvania law governing Power of Attorney documents. Most provisions of the law, which was unanimously approved by both the PA House and Senate, will become effective on January 1, 2015.

The changes to the Power of Attorney form itself will be the ones most obvious to attorneys and their clients: The Notice page preceding the actual form has been changed, as has the fiduciary Acknowledgment page which follows the actual form. The new Power of Attorney form also mandates that the execution of the document by the Principal (i.e., the person giving the powers) be accompanied by the signature of two witnesses before a notary public. In addition, certain "hot powers" (such as the power of the Agent to make a gift or change a beneficiary designation) must now be specifically set forth in the document.

However, the most significant change is one which has to do with third party recognition and reliance upon Power of Attorney documents: The new law provides that, if a third party (such as a bank) relies upon a properly prepared Power of Attorney document, the third party is immune from liability if it later turns out that the document is invalid. This should make life a little easier for Agents and their attorneys, who have often had representatives of banks or other institutions refuse to recognize a Power of Attorney because it did not fit the form preferred by the bank or institution. However, the third party being asked to accept a Power of Attorney form will have the right to require an Agent to certify certain facts or provide a translation if the form is not in English.

One problem which remains is that a bank representative or other party being asked to accept a Power of Attorney may request an opinion of counsel that the Agent is acting within the scope of authority granted uner the Power of Attorney document. The cost of obtaining an "opinion of counsel" is often prohibitive, and many attorneys, fearing liability if their opinion is incorrect, are hesitant to provide such an opinion.

Ken Milner

Categories: Long Term Planning