THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY M. K. KELLER, MARSICO, CALTAGIRONE, AUMENT, BENNINGHOFF, BOYD, BRENNAN, BUXTON, CARROLL, CLYMER, EVERETT, GEIST, GODSHALL, GRELL, HANNA, HARKINS, HARRIS, HELM, KAMPF, KAUFFMAN, KRIEGER, LAWRENCE, LONGIETTI, MANN, METCALFE, MILLARD, MILLER, MOUL, MURT, MUSTIO, OBERLANDER, O'NEILL, PICKETT, PRESTON, PYLE, QUINN, READSHAW, SAYLOR, SCHRODER, SONNEY, STERN, STURLA, TALLMAN, TOEPEL, TOOHIL, TURZAI, WATSON, BARBIN, P. COSTA, MAHER, CAUSER, MARSHALL, HICKERNELL, EVANKOVICH AND REED, OCTOBER 19, 2011

REFERRED TO COMMITTEE ON JUDICIARY, OCTOBER 19, 2011  

AN ACT

Amending Title 20 (Decedents, Estates and Fiduciaries) of the

Pennsylvania Consolidated Statutes, further providing for

general provisions and for liability; providing for liability

for refusal to accept acknowledged power of attorney; and

further providing for validity.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Sections 5601(f) and 5608 of Title 20 of the

Pennsylvania Consolidated Statutes are amended to read:

§ 5601.  General provisions.

* * *

(f)  [Definition.--As used in this chapter, the term "agent"

means a person designated by a principal in a power of attorney

to act on behalf of that principal.] Definitions.--The following

words and phrases when used in this section shall have the

meanings given to them in this subsection unless the context

clearly indicates otherwise:

"Agent."  A person designated by a principal in a power of

attorney to act on behalf of that principal.

"Good faith."  Honesty in fact.

§ 5608.  [Liability.] Acceptance of and reliance upon power of

attorney.

[(a)  Third party liability.--Any person who is given

instructions by an agent in accordance with the terms of a power

of attorney shall comply with the instructions. Any person who

without reasonable cause fails to comply with those instructions

shall be subject to civil liability for any damages resulting

from noncompliance. Reasonable cause under this subsection shall

include, but not be limited to, a good faith report having been

made by the third party to the local protective services agency

regarding abuse, neglect, exploitation or abandonment pursuant

to section 302 of the act of November 6, 1987 (P.L.381, No.79),

known as the Older Adults Protective Services Act.

(b)  Third party immunity.--Any person who acts in good faith

reliance on a power of attorney shall incur no liability as a

result of acting in accordance with the instructions of the

agent.]

(c)  Genuineness.--A person that in good faith accepts

instructions pursuant to an acknowledged power of attorney

without actual knowledge that a signature or mark of any of the

following are not genuine may, without liability, rely upon the

genuineness of the signature or mark:

(1)  The principal.

(2)  A person directed by the principal on his or her

behalf in the principal's conscious presence to sign the

power of attorney.

(3)  A witness.

(d)  Immunity.--A person that in good faith accepts a power

of attorney without actual knowledge of any of the following

may, without liability, rely upon the power of attorney as if

the power of attorney were genuine, valid and still in effect,

the agent's authority were genuine, valid and still in effect

and the agent had not exceeded and had properly exercised the

authority:

(1)  That the power of attorney is void, invalid or

terminated.

(2)  That the purported agent's authority is void,

invalid or terminated.

(3)  That the agent is exceeding or improperly exercising

the agent's authority.

(e)  Request for information.--A person that is asked to

accept a power of attorney may request and, without liability,

rely upon, without further investigation:

(1)  An agent's certification under penalty of perjury of

any factual matter concerning the principal, agent or power

of attorney or an affidavit under section 5606 (relating to

proof of continuance of powers of attorney by affidavit).

(2)  An English translation of the power of attorney if

the power of attorney contains, in whole or in part, language

other than English.

(3)  An opinion of counsel as to any matter of law

concerning the power of attorney if the person making the

request provides in a writing or other record the reason for

the request.

(f)  Additional request for information.--A person that has

accepted a power of attorney, whether with or without a

certification or opinion of counsel under subsection (e) or an

affidavit under section 5606, and has acted upon it by allowing

the agent to exercise authority granted under the power of

attorney, shall not be precluded from requesting at later times

a certification or opinion of counsel under this subsection,

subsection (e) or an affidavit under section 5606 with regard to

any further exercise of authority by the agent under the power

of attorney.

(g)  English translation.--An English translation or an

opinion of counsel requested under this section must be provided

at the principal's expense unless the request is made more than

seven business days after the power of attorney is presented for

acceptance.

(h)  Activities through employees.--For purposes of this

section, a person that conducts activities through employees

shall be considered to be without actual knowledge of a fact

relating to a power of attorney, a principal or an agent if the

employee conducting the transaction involving the power of

attorney is without actual knowledge of the fact.

(i)  Definition.--As used in this section, the term

"acknowledged power of attorney" means a power of attorney

containing signatures or marks purportedly verified before a

notary public or other individual authorized to take

acknowledgments.

Section 2.  Title 20 is amended by adding a section to read:

§ 5608.1.  Liability for refusal to accept acknowledged power of

attorney.

(a)  Acceptance required.--Except as provided under

subsections (b) and (d):

(1)  A person shall either accept an acknowledged power

of attorney or request a certification, a translation or an

opinion of counsel under section 5608(e) (relating to

acceptance of and reliance upon power of attorney) or an

affidavit under section 5606 (relating to proof of

continuance of powers of attorney by affidavit) no later than

seven business days after presentation of the power of

attorney for acceptance.

(2)  If a person requests a certification, a translation,

an opinion of counsel under section 5608(e) or an affidavit

under section 5606, the person shall accept the power of

attorney no later than five business days after receipt of

the certification, translation, opinion of counsel or

affidavit, unless the information provided by the

certification, translation, opinion or counsel or affidavit

provides a substantial basis for making a further request

under section 5606 or 5608(e).

(3)  A person may not require an additional or different

form of power of attorney for authority granted in the power

of attorney presented.

(b)  Acceptance not required.--A person may not be required

to accept an acknowledged power of attorney if any of the

following applies:

(1)  The person is not otherwise required to engage in a

transaction with the principal in the same circumstances.

(2)  Engaging in a transaction with the agent or the

principal in the same circumstances would be inconsistent

with any provisions of this chapter, including:

(i)  the failure of a power of attorney to be

executed in the manner required under section 5601(b)

(relating to general provisions); and

(ii)  circumstances in which an agent has no

authority to act because of the absence of an

acknowledgment as provided under section 5601(d), except

as provided under section 5601(e.1) or (e.2).

(3)  Engaging in a transaction with the agent in the same

circumstances would be inconsistent with any other law or

regulation.

(4)  The person has actual knowledge of the termination

of the agent's authority or of the power of attorney before

exercise of the power.

(5)  A request for a certification, a translation, an

opinion of counsel under section 5608(e) or an affidavit

under section 5606 is refused, including a certification, an

opinion of counsel or an affidavit requested to demonstrate

that the exercise of authority pursuant to a power of

attorney is proper without the notice provided for under

section 5601(c), except as provided under section 5601(e.1)

or (e.2).

(6)  The person in good faith believes that the power of

attorney is not valid or that the agent does not have the

authority to perform the act requested, whether or not a

certification, a translation, an opinion of counsel under

section 5608(e) or an affidavit under section 5606 has been

requested or provided.

(7)  The person makes a report to the local protective

services agency under section 302 of the act of November 6,

1987 (P.L.381, No.79), known as the Older Adults Protective

Services Act, stating a good faith belief that a principal

may be subject to physical or financial abuse, neglect,

exploitation or abandonment by the agent or someone acting

for or with the agent.

(8)  The person has actual knowledge that another person

has made a report to the local protective services agency

regarding abuse, neglect, exploitation or abandonment under

section 302 of the Older Adults Protective Services Act.

(c)  Violation.--A person that refuses, in violation of this

section, to accept an acknowledged power of attorney may be

subject to all of the following:

(1)  A court order mandating acceptance of the power of

attorney.

(2)  Liability for reasonable attorney fees and costs

incurred in any action or proceeding that confirms the

validity of the power of attorney or mandates acceptance of

the power of attorney.

(d)  Applicability.--The requirements of this section shall

not apply to a power of attorney subject to the laws of another

state or jurisdiction.

(e)  Activities through employees.--For purposes of this

section, a person that conducts activities through employees

shall be considered to be without actual knowledge of a fact

relating to a power of attorney, a principal or an agent if the

employee conducting the transaction involving the power of

attorney is without actual knowledge of the fact.

(f)  Definition.--As used in this section, the term

"acknowledged power of attorney" shall mean a power of attorney

containing signatures or marks purportedly verified before a

notary public or other individual authorized to take

acknowledgments.

Section 3.  Section 5611 of Title 20 is amended to read:

§ 5611.  Validity.

[A power of attorney executed in another state or

jurisdiction and in conformity with the laws of that state or

jurisdiction shall be considered valid in this Commonwealth,

except to the extent that the power of attorney executed in

another state or jurisdiction would allow an agent to make a

decision inconsistent with the laws of this Commonwealth.]

A power of attorney executed in or under the laws of another

state or jurisdiction shall be valid in this Commonwealth if,

when the power of attorney was executed, the execution complied

with:

(1)  the law of the jurisdiction indicated in the power

of attorney and, in the absence of an indication of

jurisdiction, the law of the jurisdiction in which the power

of attorney was executed; or

(2)  the requirements for a military power of attorney

under 10 U.S.C. § 1044(b) (relating to legal assistance).

Section 4.  The following shall apply:

(1)  The amendment or addition of 20 Pa.C.S. §§ 5601(f),

5608, 5608.1 and 5611 shall apply to a power of attorney

executed at any time.

(2)  The amendment of 20 Pa.C.S. §§ 5601(f) and 5608

shall apply retroactively to acts performed after December

15, 1992.

(3)  In interpreting and applying the amendment or

addition of 20 Pa.C.S. §§ 5601(f), 5608, 5608.1 and 5611, a

court shall give due consideration of the intent of the

General Assembly to reverse the interpretation of 20 Pa.C.S.

§ 5608 as set forth in Teresa M. Vine, v. Commonwealth of

Pennsylvania, State Employees' Retirement Board, 9 A.3d

1150(Pa. 2010).

Section 5.  This act shall take effect immediately.