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PRIOR PRINTER'S NO. 774
PRINTER'S NO. 1187
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
665
Session of
2015
INTRODUCED BY M. K. KELLER, GRELL, BLOOM, COHEN, HARHART,
A. HARRIS, MATZIE, McNEILL, METCALFE, MILLARD, MOUL, MURT,
PICKETT, READSHAW, SAYLOR, WATSON AND DEAN, MARCH 2, 2015
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, APRIL 14, 2015
AN ACT
Amending Title TITLES 20 (Decedents, Estates and Fiduciaries)
AND 57 (NOTARIES PUBLIC) of the Pennsylvania Consolidated
Statutes, in powers of attorney, further providing for
general provisions.; AND, IN REVISED UNIFORM LAW ON NOTARIAL
ACTS, FURTHER PROVIDING FOR SHORT FORM CERTIFICATES, FOR
IMPLEMENTATION OF POWER OF ATTORNEY AND FOR DURABLE POWERS OF
ATTORNEY.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 5601(b)(3), (e.1) and (e.2) of Title 20
of the Pennsylvania Consolidated Statutes are amended to read:
SECTION 1. SECTIONS 5601(B)(3), (E.1) AND (E.2), 5603(D) AND
5604(C)(1) OF TITLE 20 OF THE PENNSYLVANIA CONSOLIDATED STATUTES
ARE AMENDED TO READ:
§ 5601. General provisions.
* * *
(b) Execution.--
* * *
(3) For a power of attorney executed on or after the
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effective date of this paragraph, the signature or mark of
the principal, or the signature [or mark] of another
individual signing a power of attorney on behalf of and at
the direction of the principal, shall be:
(i) Acknowledged before a notary public or other
individual authorized by law to take acknowledgments. The
notary public or other individual authorized by law to
take acknowledgments shall not be the agent designated in
the power of attorney.
(ii) Witnessed by two individuals, each of whom is
18 years of age or older. A witness shall not be the
individual who signed the power of attorney on behalf of
and at the direction of the principal, the agent
designated in the power of attorney or the notary public
or other person authorized by law to take acknowledgments
before whom the power of attorney is acknowledged. For
acknowledgments by an attorney subject to this
subparagraph, the provisions of 57 Pa.C.S. § 316(2.1)
(relating to short form certificates) insofar as they
relate to an attorney as subscribing witness do not
apply. NOTHING IN THIS SECTION SHALL PROHIBIT AN
ACKNOWLEDGMENT OF A POWER OF ATTORNEY BEFORE A MEMBER OF
THE BAR OF THE PENNSYLVANIA SUPREME COURT IN THE MANNER
AUTHORIZED BY 42 PA.C.S. § 327(A) (RELATING TO OATHS AND
ACKNOWLEDGMENTS) CERTIFIED IN THE MANNER PROVIDED BY 57
PA.C.S. § 316(2.1) (RELATING TO SHORT FORM CERTIFICATES)
PROVIDED THE ATTORNEY TAKING THE ACKNOWLEDGMENT DOES NOT
ACT AS ONE OF THE TWO WITNESSES REQUIRED BY THIS
PARAGRAPH.
* * *
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(e.1) Limitation on applicability [in commercial
transaction] generally.--
(1.1) Subsections [(b)(3)(ii)] (b)(3), (c) and (d) and
section 5601.3 (relating to agent's duties) do not apply to:
(i) A power contained in an instrument used in a
commercial transaction which authorizes an agency
relationship.
(ii) A power to the extent it is coupled with an
interest in the subject of the power, including a power
given to or for the benefit of a creditor in connection
with a loan or other credit transaction.
(iii) A power exclusively granted to facilitate
transfer of stock, bonds and other assets.
(iv) [A power contained in the governing document
for a corporation, partnership or limited liability
company or other legal entity by which a director,
partner or member authorizes others to do other things on
behalf of the entity or a proxy or other delegation to
exercise voting rights or management rights with respect
to a legal entity.] A power:
(A) contained in the governing document for a
corporation, partnership or limited liability company
or other legal entity;
(B) authorized by the law that governs the
internal affairs of a legal entity;
(C) by which a director, shareholder, partner,
member or manager authorizes others to do things on
behalf of the entity; or
(D) contained in a proxy or other delegation to
exercise voting rights or management rights with
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respect to legal entity.
(v) A warrant of attorney conferring authority to
confess judgment.
(vi) A power given to a dealer as defined by the act
of December 22, 1983 (P.L.306, No.84), known as the Board
of Vehicles Act, when using the power in conjunction with
a sale, purchase or transfer of a vehicle as authorized
by 75 Pa.C.S. § 1119 (relating to application for
certificate of title by agent).
(vii) A power created on a form prescribed by a
Commonwealth agency, political subdivision or an
authority or instrumentality of the Commonwealth or a
political subdivision.
(2) Powers and powers of attorney exempted by this
subsection need not be dated.
(3) POWERS OF ATTORNEY EXEMPTED BY THIS SUBSECTION WHICH
ARE RECORDED IN THE OFFICE FOR THE RECORDER OF DEEDS UNDER
SECTION 5602(C) SHALL BE ACKNOWLEDGED BEFORE RECORDING.
(e.2) Limitation on applicability in health care and mental
health care powers of attorney.--Subsections (b)(3)(i), (c) and
(d) and section 5601.3 [(relating to agent's duties)] do not
apply to a power of attorney which exclusively provides for
health care decision making or mental health care decision
making.
* * *
Section 2. The amendment of 20 Pa.C.S. § 5601(b)(3), (e.1)
and (e.2) shall be retroactive to January 1, 2015.
§ 5603. IMPLEMENTATION OF POWER OF ATTORNEY.
* * *
(D) POWER TO CLAIM AN ELECTIVE SHARE.--A POWER "TO CLAIM AN
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ELECTIVE SHARE OF THE ESTATE OF MY DECEASED SPOUSE" SHALL MEAN
THAT THE AGENT MAY ELECT TO TAKE AGAINST THE WILL AND
CONVEYANCES OF THE PRINCIPAL'S DECEASED SPOUSE, DISCLAIM ANY
INTEREST IN PROPERTY WHICH THE PRINCIPAL IS REQUIRED TO DISCLAIM
AS A RESULT OF SUCH ELECTION, RETAIN ANY PROPERTY WHICH THE
PRINCIPAL HAS THE RIGHT TO ELECT TO RETAIN, FILE PETITIONS
PERTAINING TO THE ELECTION, INCLUDING PETITIONS TO EXTEND THE
TIME FOR ELECTING AND PETITIONS FOR ORDERS, DECREES AND
JUDGMENTS IN ACCORDANCE WITH SECTION 2211(C) AND (D) (RELATING
TO DETERMINATION OF EFFECT OF ELECTION; ENFORCEMENT), AND TAKE
ALL OTHER ACTIONS WHICH THE AGENT DEEMS APPROPRIATE IN ORDER TO
EFFECTUATE THE ELECTION: PROVIDED, HOWEVER, THAT THE ELECTION
SHALL BE MADE ONLY UPON THE APPROVAL OF THE COURT HAVING
JURISDICTION OF THE PRINCIPAL'S ESTATE IN ACCORDANCE WITH
SECTION 2206 (RELATING TO RIGHT OF ELECTION PERSONAL TO
SURVIVING SPOUSE) IN THE CASE OF A PRINCIPAL WHO HAS BEEN
ADJUDICATED AN INCAPACITATED PERSON, OR UPON THE APPROVAL OF THE
COURT HAVING JURISDICTION OF THE DECEASED SPOUSE'S ESTATE IN THE
CASE OF A PRINCIPAL WHO [HAS NOT BEEN ADJUDICATED] IS NOT AN
INCAPACITATED PERSON.
* * *
§ 5604. DURABLE POWERS OF ATTORNEY.
* * *
(C) RELATION OF AGENT TO COURT-APPOINTED GUARDIAN.--
(1) IF, FOLLOWING EXECUTION OF A DURABLE POWER OF
ATTORNEY, THE PRINCIPAL [IS ADJUDICATED] BECOMES AN
INCAPACITATED PERSON AND A GUARDIAN IS APPOINTED FOR HIS
ESTATE, THE AGENT IS ACCOUNTABLE TO THE GUARDIAN AS WELL AS
TO THE PRINCIPAL. THE GUARDIAN SHALL HAVE THE SAME POWER TO
REVOKE OR AMEND THE POWER OF ATTORNEY THAT THE PRINCIPAL
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WOULD HAVE HAD IF HE WERE NOT AN INCAPACITATED PERSON.
* * *
SECTION 2. SECTION 316(2.1) OF TITLE 57 IS AMENDED TO READ:
§ 316. SHORT FORM CERTIFICATES.
THE FOLLOWING SHORT FORM CERTIFICATES OF NOTARIAL ACTS ARE
SUFFICIENT FOR THE PURPOSES INDICATED IF COMPLETED WITH THE
INFORMATION REQUIRED BY SECTION 315(A) AND (B) (RELATING TO
CERTIFICATE OF NOTARIAL ACT):
* * *
(2.1) FOR AN ACKNOWLEDGMENT BY AN ATTORNEY AT LAW
PURSUANT TO 42 PA.C.S. § 327 (RELATING TO OATHS AND
ACKNOWLEDGMENTS):...................................
STATE OF............................................
COUNTY OF...........................................
THIS RECORD WAS ACKNOWLEDGED BEFORE ME ON
(DATE)..............................................
BY (NAME OF ATTORNEY)...............................
SUPREME COURT IDENTIFICATION NUMBER.................
AS A MEMBER OF THE BAR OF THE PENNSYLVANIA SUPREME COURT
[AND A SUBSCRIBING WITNESS TO THIS RECORD AND] CERTIFIED
THAT HE/SHE WAS PERSONALLY PRESENT WHEN (NAME(S) OF
INDIVIDUAL(S)) EXECUTED THE RECORD AND THAT (NAME(S) OF
INDIVIDUAL(S)) EXECUTED THE RECORD FOR THE PURPOSES
CONTAINED THEREIN.
SIGNATURE OF NOTARIAL OFFICER.......................
STAMP
....................................................
TITLE OF OFFICE.....................................
MY COMMISSION EXPIRES:..............................
* * *
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SECTION 3. THIS ACT APPLIES AS FOLLOWS:
(1) THE AMENDMENT OF 20 PA.C.S. §§ 5601(B)(3), (E.1) AND
(E.2), 5603(D) AND 5604(C)(1) SHALL BE RETROACTIVE TO JANUARY
1, 2015.
(2) THE AMENDMENT OF 57 PA.C.S. § 316(2.1) SHALL APPLY
TO A FORM USED FOR AN ACKNOWLEDGMENT TAKEN BY A MEMBER OF THE
BAR OF THE PENNSYLVANIA SUPREME COURT PURSUANT TO 42 PA.C.S.
§ 327(A) RETROACTIVELY TO JANUARY 1, 2015.
Section 3 4. This act shall take effect immediately.
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