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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY GREENLEAF, TARTAGLIONE, ALLOWAY, O'PAKE, BAKER AND WASHINGTON, MAY 7, 2010 |
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| REFERRED TO JUDICIARY, MAY 7, 2010 |
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| AN ACT |
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1 | Amending Title 20 (Decedents, Estates and Fiduciaries) of the |
2 | Pennsylvania Consolidated Statutes, in health care, further |
3 | providing for definitions, for authority of health care agent |
4 | and for relation of health care agent to court-appointed |
5 | guardian and other agents; in powers of attorney, further |
6 | providing for general provisions, for special rules for |
7 | gifts, for form of power of attorney, for implementation of |
8 | power of attorney, for durable powers of attorney and for |
9 | account; and providing for investigation of financial abuse |
10 | and mismanagement, for jurisdiction and venue and for |
11 | principles of law and equity. |
12 | The General Assembly of the Commonwealth of Pennsylvania |
13 | hereby enacts as follows: |
14 | Section 1. The definition of "health care decision" in |
15 | section 5422 of Title 20 of the Pennsylvania Consolidated |
16 | Statutes is amended to read: |
17 | § 5422. Definitions. |
18 | The following words and phrases when used in this chapter |
19 | shall have the meanings given to them in this section unless the |
20 | context clearly indicates otherwise: |
21 | * * * |
22 | "Health care decision." A decision regarding an individual's |
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1 | health care, including, but not limited to, the following: |
2 | (1) Selection and discharge of a health care provider. |
3 | (2) Approval or disapproval of a diagnostic test, |
4 | surgical procedure or program of medication. |
5 | (3) Directions to initiate, continue, withhold or |
6 | withdraw all forms of life-sustaining treatment, including |
7 | instructions not to resuscitate. |
8 | (4) Admission to a medical, nursing, residential or |
9 | similar facility or entering into agreements for the |
10 | individual's care. |
11 | (5) After the death of the individual, making anatomical |
12 | gifts, disposing of the remains or consenting to autopsies. |
13 | * * * |
14 | Section 2. Sections 5456(a) and 5460(a) of Title 20 are |
15 | amended to read: |
16 | § 5456. Authority of health care agent. |
17 | (a) Extent of authority.--Except as expressly provided |
18 | otherwise in a health care power of attorney and subject to |
19 | subsection (b) and section 5460 (relating to relation of health |
20 | care agent to court-appointed guardian and other agents), a |
21 | health care agent shall have the authority to make any health |
22 | care decision and to exercise any right and power regarding the |
23 | principal's care, custody and health care treatment that the |
24 | principal could have made and exercised. The foregoing power |
25 | shall include the power to authorize admission to a medical, |
26 | nursing, residential or similar facility, or to enter into |
27 | agreements for the principal's care. The health care agent's |
28 | authority may extend beyond the principal's death to make |
29 | anatomical gifts, dispose of the remains and consent to |
30 | autopsies. |
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1 | * * * |
2 | § 5460. Relation of health care agent to court-appointed |
3 | guardian and other agents. |
4 | (a) Accountability of health care agent.--If a principal who |
5 | has executed a health care power of attorney is later |
6 | adjudicated an incapacitated person and a guardian of the person |
7 | to make health care decisions is appointed by a court, the |
8 | health care agent is accountable to the guardian as well as to |
9 | the principal. [The guardian shall have the same power to revoke |
10 | or amend the appointment of a health care agent that the |
11 | principal would have if the principal were not incapacitated but |
12 | may not revoke or amend other instructions in an advance health |
13 | directive absent judicial authorization.] In its guardianship |
14 | order and determination of a person's incapacity, the court |
15 | shall determine the extent to which the health care agent's |
16 | authority to act remains in effect. |
17 | * * * |
18 | Section 3. Sections 5601(b), (d) and (e), 5601.2(a), (b), |
19 | (c), (d) and (e), 5602(a) and (c) and 5603(a), (d), (e), (h), |
20 | (k)(4), (p), (q) and (u.1) of Title 20 are amended and the |
21 | sections are amended by adding subsections to read: |
22 | § 5601. General provisions. |
23 | * * * |
24 | (b) Execution.--A power of attorney shall be dated and |
25 | signed [and dated] by the principal by signature or mark, or by |
26 | another individual on behalf of and at the direction of the |
27 | principal if the principal is unable to sign but specifically |
28 | directs another individual to sign the power of attorney. [If |
29 | the power of attorney is executed by mark or by another |
30 | individual, then it] The power of attorney shall be witnessed by |
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1 | two individuals, each of whom is 18 years of age or older. A |
2 | witness shall not be an agent appointed in the power of attorney |
3 | or the individual who signed the power of attorney on behalf of |
4 | and at the direction of the principal. |
5 | * * * |
6 | (d) Acknowledgment executed by agent.--An agent shall have |
7 | no authority to act as agent under the power of attorney unless |
8 | the agent has first executed and affixed to the power of |
9 | attorney an acknowledgment in substantially the following form: |
10 | I, , have read the attached power of attorney |
11 | and am the person identified as the agent for the principal. I |
12 | hereby acknowledge that in the absence of a specific provision |
13 | to the contrary in the power of attorney or in 20 Pa.C.S. when I |
14 | act as agent: |
15 | I shall exercise the powers for the benefit of the principal. |
16 | I shall keep the assets of the principal separate from my |
17 | assets. |
18 | I shall exercise reasonable caution and prudence. |
19 | I shall keep a full and accurate record of all actions, |
20 | receipts and disbursements on behalf of the principal. |
21 | I shall preserve the estate plan of the principal, including |
22 | the effect of intestacy if the principal does not have a will. |
23 | (Agent) (Date) |
24 | (e) Fiduciary relationship.--An agent acting under a power |
25 | of attorney has a fiduciary relationship with the principal. In |
26 | the absence of a specific provision to the contrary in the power |
27 | of attorney, the fiduciary relationship includes the duty to: |
28 | (1) Exercise the powers for the benefit of the |
29 | principal. |
30 | (2) Keep separate the assets of the principal from those |
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1 | of an agent. |
2 | (3) Exercise reasonable caution and prudence. |
3 | (4) Keep a full and accurate record of all actions, |
4 | receipts and disbursements on behalf of the principal. |
5 | (5) Preserve the estate plan of the principal, including |
6 | the effect of intestacy if the principal does not have a |
7 | will. |
8 | * * * |
9 | (e.3) Equity and justice.-- |
10 | (1) An agent and a recipient of a gift or other |
11 | financial benefit, during the principal's life or at the |
12 | principal's death, arising from the action of the agent is |
13 | liable as equity and justice may require to the extent that |
14 | the court determines that the action of the agent was |
15 | inconsistent with: |
16 | (i) prudent estate planning or financial management |
17 | for the principal; or |
18 | (ii) the known or probable intent of the principal |
19 | with respect to the disposition of the principal's |
20 | property. |
21 | (2) An agent who in good faith exercises reasonable |
22 | caution and prudence shall not be personally liable. |
23 | * * * |
24 | § 5601.2. Special rules for gifts and changes to principal's |
25 | estate plan. |
26 | (a) General rule.--A principal may empower an agent to make |
27 | a gift or make changes to the principal's estate plan in a power |
28 | of attorney only as provided in this section. A power to make a |
29 | gift or make changes to the principal's estate plan may not be |
30 | inferred from a grant of another power or from a general grant |
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1 | of authority to do anything that the principal could do, except |
2 | to the extent that a principal expressly grants the agent the |
3 | power under section 5603(u.3) (relating to implementation of |
4 | power of attorney) authorizing personal and family maintenance. |
5 | (b) Limited gifts not requiring court approval.--Limited |
6 | gifts that are authorized in compliance with this subsection do |
7 | not require court approval. A principal may authorize an agent |
8 | to make [a] limited [gift] gifts as defined under section |
9 | 5603(a)(2) [(relating to implementation of power of attorney)] |
10 | only by the inclusion of: |
11 | (1) the language quoted in section 5602(a)(1) (relating |
12 | to form of power of attorney); or |
13 | (2) other language showing a similar intent on the part |
14 | of the principal to empower the agent to make a limited gift. |
15 | (c) [Unlimited] Other gifts specifically authorized and not |
16 | requiring court approval.--Other gifts that are specifically |
17 | authorized in compliance with this subsection do not require |
18 | court approval. A principal may authorize an agent to make any |
19 | other gift only by specifically [providing for and defining the |
20 | agent's authority in the power of attorney.] identifying: |
21 | (1) The donee, such as an individual, charity or other |
22 | entity, whether by name, relationship, class or other |
23 | description, except that the phrase "any donee" or other |
24 | language showing a similar intent is not a specific |
25 | identification. |
26 | (2) The property to be gifted or the amounts of cash |
27 | gifts. |
28 | (c.1) Other actions not requiring court approval.-- |
29 | (1) An agent may act without court approval if the |
30 | action: |
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1 | (i) Is otherwise authorized by the power of |
2 | attorney. |
3 | (ii) Maintains and is consistent with the |
4 | preservation of the principal's estate plan, including |
5 | the effect of intestacy if the principal does not have a |
6 | will. |
7 | (2) An action under this subsection may include: |
8 | (i) Placing property into joint names with rights of |
9 | survivorship. |
10 | (ii) The use of a designation such as "in trust |
11 | for," "payable on death" or "transfer on death." |
12 | (iii) The execution of a beneficiary designation. |
13 | (3) An action under this subsection may not be taken if |
14 | the interest of any beneficiary under the principal's |
15 | existing estate plan, including an intestacy if the principal |
16 | has no will, is prejudiced thereby. Either of the following |
17 | shall be considered a change in the principal's estate plan |
18 | and governed by subsection (c.2), which requires court |
19 | approval: |
20 | (i) An action that results in a beneficiary |
21 | receiving at the death of the principal an interest |
22 | outright and free of trust that would have passed in |
23 | trust at death under the principal's present estate plan. |
24 | (ii) An action that converts an outright gift at |
25 | death into one received in trust. |
26 | (c.2) Court-approved gifts and changes to estate plan.-- |
27 | (1) Subject to paragraph (2), a principal may authorize |
28 | an agent to do the following on behalf of the principal or |
29 | with the principal's property: |
30 | (i) Make a gift other than a gift authorized under |
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1 | subsection (b) or (c). |
2 | (ii) Create or change rights of survivorship. |
3 | (iii) Create or change a beneficiary designation. |
4 | (iv) Create an inter vivos trust, other than a trust |
5 | described in section 5603(b) or (c), or amend, revoke or |
6 | terminate an existing trust, but only to the extent that |
7 | the principal had previously retained or been granted |
8 | such powers. |
9 | (v) Waive the principal's right to be a beneficiary |
10 | of a joint and survivor annuity, including a survivor |
11 | benefit under a retirement plan. |
12 | (2) An agent may exercise a power under paragraph (1) |
13 | only if: |
14 | (i) The power of attorney expressly grants the agent |
15 | the specific authority to exercise the power. |
16 | (ii) The court having jurisdiction over the agent, |
17 | upon petition by the agent, approves the agent's proposed |
18 | action after finding that it is consistent with both: |
19 | (A) Prudent estate planning or financial |
20 | management for the principal. |
21 | (B) The known or probable intent of the |
22 | principal with respect to the disposition of the |
23 | principal's property. |
24 | (d) Nature of gifts.--In the absence of a specific provision |
25 | to the contrary in the power of attorney: |
26 | (1) A power to make a [limited] gift under subsection |
27 | (b) or (c) shall be construed to empower the agent to make a |
28 | gift to each donee either outright [or], in trust or to a |
29 | tuition savings account or prepaid tuition plan as defined in |
30 | section 529 of the Internal Revenue Code of 1986 (Public Law |
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1 | 99-514, 26 U.S.C. § 529). |
2 | (2) In the case of any gift to a minor, that gift may be |
3 | made in trust or in accordance with Chapter 53 (relating to |
4 | Pennsylvania Uniform Transfers to Minors Act) or section 5155 |
5 | (relating to order of court). |
6 | (3) In the case of any gift made in trust, the agent may |
7 | execute a deed of trust for such purpose, designating one or |
8 | more persons, including the agent, as original or successor |
9 | trustees, or may make an addition to an existing trust. |
10 | (4) In making any gift, the agent need not treat the |
11 | donees equally or proportionately and may entirely exclude |
12 | one or more permissible donees. |
13 | (5) The pattern followed on the occasion of any gift |
14 | need not be followed on the occasion of any other gift. |
15 | [(e) Equity.--An agent and the donee of a gift shall be |
16 | liable as equity and justice may require to the extent that, as |
17 | determined by the court, a gift made by the agent is |
18 | inconsistent with prudent estate planning or financial |
19 | management for the principal or with the known or probable |
20 | intent of the principal with respect to disposition of the |
21 | estate.] |
22 | * * * |
23 | (g) Court proceeding.--When court approval is required under |
24 | subsection (c.2): |
25 | (1) The burden of proof, by clear and convincing |
26 | evidence, shall be on the agent. |
27 | (2) Notice of the petition and hearing shall be given in |
28 | the manner as the court shall direct to: |
29 | (i) All persons who are sui juris and would be |
30 | entitled to share in the principal's estate if the |
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1 | principal died intestate at that time. |
2 | (ii) Any person known to the agent who would be |
3 | prejudiced by the proposed action. |
4 | (iii) Such other parties as the court may direct. |
5 | (3) The hearing may be closed to the public unless the |
6 | principal or the principal's counsel objects. |
7 | (4) The court sua sponte or upon request of the agent or |
8 | others may direct that some or all of the pleadings or |
9 | documents related to the petition and hearing be sealed or |
10 | redacted in the manner and to the extent that the court deems |
11 | appropriate. |
12 | § 5602. Form of power of attorney. |
13 | (a) Specification of powers.--A principal may, by inclusion |
14 | of the language quoted in any of the following paragraphs or by |
15 | inclusion of other language showing a similar intent on the part |
16 | of the principal, empower an agent to do any or all of the |
17 | following, each of which is defined in section 5603 (relating to |
18 | implementation of power of attorney): |
19 | (1) "To make limited gifts." |
20 | (2) "To create a trust for my benefit." |
21 | (3) "To make additions to an existing trust for my |
22 | benefit." |
23 | (4) "To claim an elective share of the estate of my |
24 | deceased spouse." |
25 | (5) "To disclaim any interest in property." |
26 | (6) "To renounce fiduciary positions." |
27 | (7) "To withdraw and receive the income or corpus of a |
28 | trust." |
29 | [(8) "To authorize my admission to a medical, nursing, |
30 | residential or similar facility and to enter into agreements |
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1 | for my care." |
2 | (9) "To authorize medical and surgical procedures."] |
3 | (10) "To engage in real property transactions." |
4 | (11) "To engage in tangible personal property |
5 | transactions." |
6 | (12) "To engage in stock, bond and other securities |
7 | transactions." |
8 | (13) "To engage in commodity and option transactions." |
9 | (14) "To engage in banking and financial transactions." |
10 | (15) "To borrow money." |
11 | (16) "To enter safe deposit boxes." |
12 | (17) "To engage in insurance and annuity transactions." |
13 | (18) "To engage in retirement plan transactions." |
14 | (19) "To handle interests in estates and trusts." |
15 | (20) "To pursue claims and litigation." |
16 | (21) "To receive government benefits." |
17 | (22) "To pursue tax matters." |
18 | [(23) "To make an anatomical gift of all or part of my |
19 | body."] |
20 | (24) "To operate a business or entity." |
21 | (25) "To provide for personal and family maintenance." |
22 | * * * |
23 | (c) Filing of power of attorney.--An originally executed |
24 | [copy of the] power of attorney may be filed with the clerk of |
25 | the orphans' court division of the court of common pleas in the |
26 | county in which the principal resides, and if it is |
27 | acknowledged, it may be recorded in the office for the recording |
28 | of deeds of the county of the principal's residence and of each |
29 | county in which real property to be affected by an exercise of |
30 | the power is located. The clerk of the orphans' court division |
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1 | or any office for the recording of deeds with whom the power has |
2 | been filed, may, upon request, issue certified copies of the |
3 | power of attorney. Each such certified copy shall have the same |
4 | validity and the same force and effect as if it were the |
5 | original, and it may be filed of record in any other office of |
6 | this Commonwealth (including, without limitation, the clerk of |
7 | the orphans' court division or the office for the recording of |
8 | deeds) as if it were the original. |
9 | (d) Copy of power of attorney.--Except for the purpose of |
10 | filing under subsection (c), a photocopy or electronically |
11 | transmitted copy of an originally executed power of attorney has |
12 | the same effect as the original. |
13 | § 5603. Implementation of power of attorney. |
14 | (a) Power to make limited gifts.-- |
15 | (2) A power "to make limited gifts" shall mean that the |
16 | agent may make only gifts for or on behalf of the principal |
17 | which are limited as follows: |
18 | (i) The class of permissible donees under this |
19 | paragraph shall consist solely of the principal's spouse, |
20 | issue and a spouse of the principal's issue (including |
21 | the agent if a member of any such class), or any of them. |
22 | (ii) During each calendar year, the gifts made to |
23 | any permissible donee, pursuant to such power, shall have |
24 | an aggregate value not in excess of, and shall be made in |
25 | such manner as to qualify in their entirety for, the |
26 | annual exclusion from the Federal gift tax permitted |
27 | under section 2503(b) of the Internal Revenue Code of |
28 | 1986 (Public Law 99-514, 26 U.S.C. § 1 et seq.) for the |
29 | principal [and, if applicable, the principal's spouse] |
30 | or, if the principal's spouse agrees to consent to |
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1 | splitting gifts under section 2513(a) of the Internal |
2 | Revenue Code of 1986, in an amount per donee (other than |
3 | the spouse) not to exceed twice the annual exclusion |
4 | limit. The limits under this subparagraph may be exceeded |
5 | if and to the extent the agent elects to equalize gifts |
6 | among family units with each child of the principal and |
7 | the child's descendants treated as a family unit. |
8 | (iv) In addition to the gifts authorized by |
9 | subparagraphs (i) and (ii), a gift made pursuant to such |
10 | power may be for the tuition or medical care of any |
11 | permissible donee to the extent that the gift is excluded |
12 | from the Federal gift tax under section 2503(e) of the |
13 | Internal Revenue Code of 1986 as a qualified transfer. |
14 | (v) The agent may consent, pursuant to section |
15 | 2513(a) of the Internal Revenue Code of 1986, to the |
16 | splitting of gifts made by the principal's spouse to the |
17 | principal's issue or a spouse of the principal's issue in |
18 | any amount and to the splitting of gifts made by the |
19 | principal's spouse to any other person in amounts not |
20 | exceeding the aggregate annual gift tax exclusions for |
21 | both spouses under section 2503(b) of the Internal |
22 | Revenue Code of 1986. |
23 | * * * |
24 | (d) Power to claim an elective share.--A power "to claim an |
25 | elective share of the estate of my deceased spouse" shall mean |
26 | that the agent may elect to take against the will and |
27 | conveyances of the principal's deceased spouse, disclaim any |
28 | interest in property which the principal is required to disclaim |
29 | as a result of such election, retain any property which the |
30 | principal has the right to elect to retain, file petitions |
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1 | pertaining to the election, including petitions to extend the |
2 | time for electing and petitions for orders, decrees and |
3 | judgments in accordance with section 2211(c) and (d) (relating |
4 | to determination of effect of election; enforcement), and take |
5 | all other actions which the agent deems appropriate in order to |
6 | effectuate the election: Provided, however, That the election |
7 | shall be made only upon the approval of the court having |
8 | jurisdiction of the principal's estate in accordance with |
9 | section 2206 (relating to right of election personal to |
10 | surviving spouse) in the case of a principal who [has been |
11 | adjudicated] is an incapacitated person, or upon the approval of |
12 | the court having jurisdiction of the deceased spouse's estate in |
13 | the case of a principal who [has not been adjudicated] is not an |
14 | incapacitated person. |
15 | (e) Power to disclaim any interest in property.--A power "to |
16 | disclaim any interest in property" shall mean that the agent may |
17 | release or disclaim any interest in property on behalf of the |
18 | principal in accordance with Chapter 62 (relating to |
19 | disclaimers) or section 6103 (relating to release or disclaimer |
20 | of powers or interests), provided that any disclaimer under |
21 | Chapter 62 shall be in accordance with the provisions of section |
22 | 6202 (relating to disclaimers by fiduciaries or agents) in the |
23 | case of a principal who [shall have been adjudicated] is an |
24 | incapacitated person at the time of the execution of the |
25 | disclaimer. |
26 | * * * |
27 | [(h) Power to authorize admission to medical facility and |
28 | power to authorize medical procedures.-- |
29 | (1) A power "to authorize my admission to a medical, |
30 | nursing, residential or similar facility, and to enter into |
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1 | agreements for my care" shall mean that the agent may apply |
2 | for the admission of the principal to a medical, nursing, |
3 | residential or other similar facility, execute any consent or |
4 | admission forms required by such facility which are |
5 | consistent with this paragraph, and enter into agreements for |
6 | the care of the principal by such facility or elsewhere |
7 | during his lifetime or for such lesser period of time as the |
8 | agent may designate, including the retention of nurses for |
9 | the principal. |
10 | (2) A power "to authorize medical and surgical |
11 | procedures" shall mean that the agent may arrange for and |
12 | consent to medical, therapeutical and surgical procedures for |
13 | the principal, including the administration of drugs.] |
14 | * * * |
15 | (k) Power to engage in stock, bond and other securities |
16 | transactions.--A power to "engage in stock, bond and other |
17 | securities transactions" shall mean that the agent may: |
18 | * * * |
19 | (4) Join in any merger, reorganization, consolidation, |
20 | dissolution, liquidation, voting-trust plan or other |
21 | concerted action of security holders and make payments in |
22 | connection therewith. |
23 | * * * |
24 | (p) Power to engage in insurance and annuity transactions.-- |
25 | A power to "engage in insurance and annuity transactions" shall |
26 | mean that the agent may: |
27 | (1) Purchase, continue, renew, convert or terminate any |
28 | type of insurance (including, but not limited to, life, |
29 | accident, health, disability or liability insurance) or |
30 | annuity and pay premiums and collect benefits and proceeds |
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1 | under [insurance] these policies. |
2 | (2) Exercise nonforfeiture provisions under insurance |
3 | policies and annuity contracts. |
4 | (3) In general, exercise all powers with respect to |
5 | insurance and annuities that the principal could if present[; |
6 | however, the agent cannot designate himself beneficiary of a |
7 | life insurance policy unless the agent is the spouse, child, |
8 | grandchild, parent, brother or sister of the principal], |
9 | including the designation of a beneficiary, but only as |
10 | permitted under section 5601.2(c.1) and (c.2) (relating to |
11 | special rules for gifts and changes to principal's estate |
12 | plan). |
13 | (q) Power to engage in retirement plan transactions.--A |
14 | power to "engage in retirement plan transactions" shall mean |
15 | that the agent may contribute to, withdraw from and deposit |
16 | funds in any type of retirement plan (including, but not limited |
17 | to, any tax qualified or nonqualified pension, profit sharing, |
18 | stock bonus, employee savings and retirement plan, deferred |
19 | compensation plan or individual retirement account), select and |
20 | change payment options for the principal, make roll-over |
21 | contributions from any retirement plan to other retirement plans |
22 | and, in general, exercise all powers with respect to retirement |
23 | plans that the principal could if present, including the |
24 | designation of a beneficiary, but only as permitted under |
25 | section 5601.2(c.1) and (c.2). |
26 | * * * |
27 | [(u.1) Power to make anatomical gift.--A power "to make an |
28 | anatomical gift of all or part of my body" shall mean that the |
29 | agent may arrange and consent, either before or after the death |
30 | of the principal, to procedures to make an anatomical gift in |
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1 | accordance with Chapter 86 (relating to anatomical gifts).] |
2 | (u.2) Power to operate a business or entity.--A power "to |
3 | operate a business or entity" shall mean that the agent may: |
4 | (1) Continue or participate in the operation of any |
5 | business or other entity in which the principal holds an |
6 | interest, whether alone or with others, by making and |
7 | implementing decisions regarding its financing, operations, |
8 | employees and all other matters pertinent to the business or |
9 | entity. |
10 | (2) Change the form of ownership of the business or |
11 | entity to a corporation, partnership, limited liability |
12 | company or other entity, and initiate or take part in a |
13 | corporate reorganization, including a merger, consolidation, |
14 | dissolution or other change in organizational form. |
15 | (3) Compensate an agent actively managing, supervising |
16 | or engaging in the operation of a business or entity, as |
17 | appropriate, from the principal's assets or from the business |
18 | or entity, provided the compensation is reasonably based upon |
19 | the actual responsibilities assumed and performed. |
20 | (4) In general, exercise all powers with respect to |
21 | operating a business or entity that the principal could if |
22 | present. |
23 | (u.3) Power to provide for personal and family |
24 | maintenance.-- |
25 | (1) A power "to provide for personal and family |
26 | maintenance" shall mean that the agent may provide for the |
27 | health, education, maintenance and support, in order to |
28 | maintain the customary standard of living of the principal's |
29 | spouse and the following individuals, whether living when the |
30 | power of attorney is executed or later born: |
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1 | (i) The principal's minor children. |
2 | (ii) Other individuals legally entitled to be |
3 | supported by the principal. |
4 | (iii) The individuals whom the principal has |
5 | customarily supported. |
6 | (2) In acting under this subsection, the agent shall: |
7 | (i) Take into account the long-term needs of the |
8 | principal. |
9 | (ii) Consider any independent means available to |
10 | those individuals apart from the support provided by the |
11 | principal. |
12 | (3) Authority with respect to personal and family |
13 | maintenance is in addition to and not limited by authority |
14 | that an agent may or may not have, or court approval that may |
15 | be necessary with respect to gifts under this chapter. |
16 | * * * |
17 | Section 4. Section 5604(c)(1) of Title 20 is amended, |
18 | subsection (c) is amended by adding a paragraph and the section |
19 | is amended by adding a subsection to read: |
20 | § 5604. Durable powers of attorney. |
21 | * * * |
22 | (c) Relation of agent to court-appointed guardian.-- |
23 | (1) If, following execution of a durable power of |
24 | attorney, the principal [is adjudicated] becomes an |
25 | incapacitated person and a guardian is appointed for his |
26 | estate, the agent is accountable to the guardian as well as |
27 | to the principal. [The guardian shall have the same power to |
28 | revoke or amend the power of attorney that the principal |
29 | would have had if he were not an incapacitated person.] |
30 | * * * |
|
1 | (3) In its guardianship order and determination of a |
2 | person's incapacity, the court shall determine whether and |
3 | the extent to which the incapacitated person's durable power |
4 | of attorney remains in effect. |
5 | * * * |
6 | (d.1) Disclosure.--Except as otherwise provided in the power |
7 | of attorney, an agent is not required to disclose receipts, |
8 | disbursements or transactions conducted on behalf of the |
9 | principal unless: |
10 | (1) ordered by a court; or |
11 | (2) requested by: |
12 | (i) the principal; |
13 | (ii) the principal's guardian; |
14 | (iii) another fiduciary acting for the principal; |
15 | (iv) a governmental agency having authority to |
16 | protect the welfare of the principal as set forth in |
17 | subsection (d); or |
18 | (v) the personal representative or successor in |
19 | interest of the principal's estate, upon the death of the |
20 | principal. |
21 | * * * |
22 | Section 5. 5610 of Title 20 is amended to read: |
23 | § 5610. Account. |
24 | An agent shall file an account of his administration whenever |
25 | directed to do so by the court and may file an account at any |
26 | other time. All accounts shall be filed in the office of the |
27 | clerk in the county where the principal resides. The court may |
28 | assess the costs of the accounting proceeding as it deems |
29 | appropriate, including the costs of preparing and filing the |
30 | account. |
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1 | Section 6. Title 20 is amended by adding sections to read: |
2 | § 5612. Investigation of financial abuse and mismanagement. |
3 | The court may order an investigation, appoint a guardian ad |
4 | litem, make a referral to an appropriate agency or take any |
5 | other appropriate action regarding allegations that a principal |
6 | is suffering from financial abuse or mismanagement by the |
7 | principal's agent under a power of attorney: |
8 | (1) upon petition by an appropriate party and a |
9 | reasonable showing of the financial abuse or mismanagement; |
10 | or |
11 | (2) after the court is otherwise informed of the |
12 | financial abuse or mismanagement. |
13 | § 5613. Jurisdiction and venue. |
14 | (a) County having venue.--Venue of any matter pertaining to |
15 | the exercise of a power by an agent acting under a power of |
16 | attorney as provided in this chapter shall be in the county in |
17 | which the principal is domiciled, a resident or residing in a |
18 | long-term care facility. |
19 | (b) Declining jurisdiction.-- |
20 | (1) A court having jurisdiction may decline to exercise |
21 | jurisdiction if at any time it determines that a court of |
22 | another county or state is a more appropriate forum. |
23 | (2) If a court of this Commonwealth declines to exercise |
24 | jurisdiction, it shall either dismiss the proceeding or stay |
25 | the proceeding upon condition that a proceeding be promptly |
26 | commenced in another county or state. A court may impose any |
27 | other condition that it deems appropriate. |
28 | § 5614. Principles of law and equity. |
29 | Except as otherwise provided by this chapter or another |
30 | statute of this Commonwealth, common law and the principles of |
|
1 | equity supplement this chapter. |
2 | Section 7. This act shall apply as follows: |
3 | (1) Except as set forth in paragraph (2), this act shall |
4 | apply to all powers of attorney executed on or after the |
5 | effective date of this section. |
6 | (2) (i) Nothing in this act shall be construed to limit |
7 | the effectiveness of powers of attorney in effect prior |
8 | to the effective date of of this section. |
9 | (ii) Any provision in a power of attorney |
10 | incorporating by reference a power under 20 Pa.C.S. § |
11 | 5602(a)(8), (9) or (23) prior to the repeal of 20 Pa.C.S. |
12 | § 5602(a)(8), (9) or (23) shall continue to be governed |
13 | by the respective paragraph of 20 Pa.C.S. § 5602(a) as if |
14 | no repeal occurred. |
15 | Section 8. This act shall take effect as follows: |
16 | (1) The following provisions shall take effect |
17 | immediately: |
18 | (i) This section. |
19 | (ii) The addition of 20 Pa.C.S. § 5601(e.3). |
20 | (iii) The repeal of 20 Pa.C.S. § 5601.2(e). |
21 | (2) The remainder of this act shall take effect in six |
22 | months. |
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