If you live in the Keystone State and plan to create a power of attorney, you need to know the requirements in Pennsylvania.
What is a power of attorney?
A power of attorney (or POA) is a legal document that gives one person (the "agent") the authority to act for another person (the "principal").
A POA is useful if you can't be present to take care of a financial matter or want someone to take care of your finances or medical treatment in the event you become incapacitated—what Pennsylvania law refers to as disabled or incapacitated.
Traditionally, a POA ended if the principal became incapacitated. A POA that continues after incapacity is called a "durable" POA. Traditionally, a POA also became effective immediately upon being signed. A POA that only becomes effective if the principal becomes incapacitated is called a "springing" POA (which by its nature is also durable).
Under Pennsylvania law, a POA is durable unless it specifically states otherwise. It may also be a springing POA if so provided.
What are the signing and witness requirements?
A POA in Pennsylvania must be dated, signed by the principal, witnessed by two adults, and notarized.
If the principal is not able to write, he or she may sign by making a mark (such as an "X") or by directing another person to sign on his or her behalf. If this is done, there must be two adult witnesses to the signature. The notary public may not be the agent.
The witness requirements for a power of attorney in Pennsylvania are that a witness must be at least 18 years of age, but may not be the agent or a person who signed the POA on behalf of the principal.
How do you obtain a Pennsylvania financial POA?
Obtaining a power of attorney in Pennsylvania is not as easy as in some states, because the Pennsylvania legislature has not created a form for a financial power of attorney.
However, Pennsylvania law does provide a notice, and an acknowledgment provision, that must be included at the beginning of any POA. The Notice can be found in Title 20 of the Statutes of Pennsylvania Consolidated Statutes, Section 5601 (c), and the acknowledgment can be found in Section 5601 (d).
Since Pennsylvania does not provide a form, you may wish to modify a generic POA form or one from another state. You will need to be sure it contains the required Pennsylvania Notice and acknowledgment.
Also, Sections 5602 and 5603 of the Pennsylvania law indicate and describe various types of powers that may be given to an agent by a POA. Using the language in Section 5602 for any power you wish to give your agent will avoid having to set forth the power in detail.
Although it is not required, filing a power of attorney in Pennsylvania may be done with the clerk of the Orphan's Court Division of the Court of Common Pleas in the county where the principal resides.
If the POA includes authority for real estate transactions and is notarized, it may also be recorded in the county office for recording deeds.
What about a healthcare power of attorney?
Pennsylvania authorizes the creation of a healthcare power of attorney but does not provide a suggested form. You may make a healthcare POA if you are at least 18 years of age or, if under 18, you have graduated from high school, are married, or are legally emancipated.
A healthcare POA must be dated, signed by the principal (in the same manner as for a financial POA), and witnessed by two persons who are at least 18 years old.
A person who signs a POA on behalf of the principal may not be a witness. A healthcare provider or an agent of a healthcare provider may not sign for the principal. A healthcare provider for the principal may not serve as agent, nor may an owner, operator, or employee of such a healthcare provider.
Since there is no official form, you may wish to adapt a generic healthcare POA or one from another state.
More details regarding healthcare POAs may be found in Title 20 of the Statutes of Pennsylvania Consolidated Statutes, starting at Section 5451, subchapter C, including life-sustaining treatment and other medical decisions.
Financial and medical decisions are too important to leave to chance. Educate yourself on the Pennsylvania requirements for both forms of POA, and get the necessary documents in place well before you need to use them.