THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY GREENLEAF, ORIE, FONTANA AND LEACH, JUNE 3, 2011

REFERRED TO JUDICIARY, JUNE 3, 2011  

AN ACT

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

Pennsylvania Consolidated Statutes, in powers of attorney,

further providing for general provisions, for form of power

of attorney and for liability.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Sections 5601(b), (e.1) and (e.2) and 5602(c) of

Title 20 of the Pennsylvania Consolidated Statutes are amended

and the sections are amended by adding subsections to read:

§ 5601.  General provisions.

* * *

(b)  Execution.--A power of attorney shall be dated, and it

shall be signed [and dated] by the principal by signature or

mark, or by another individual on behalf of and at the direction

of the principal if the principal is unable to sign but

specifically directs another individual to sign the power of

attorney. [If the power of attorney is executed by mark or by

another individual, then it] The power of attorney shall be

witnessed by two individuals, each of whom is 18 years of age or

older. A witness shall not be an agent appointed in the power of

attorney or the individual who signed the power of attorney on

behalf of and at the direction of the principal.

(b.1)  Acknowledgment and affidavits.--

(1)  In addition to the requirements under subsection

(b):

(i)  A power of attorney shall be acknowledged by the

principal as provided in this subsection.

(ii)  The witnesses to a power of attorney shall

provide affidavits as provided in this subsection. A

witness may not be the individual who takes the

principal's acknowledgment. A separate affidavit may be

used for each witness whose affidavit is not taken at the

same time as the principal's acknowledgment.

(2)  The acknowledgment of the principal and the

affidavits of the witnesses shall be:

(i)  Made before:

(A)  an officer authorized to administer oaths

under the laws of this Commonwealth or under the laws

of the state where execution occurs; or

(B)  an attorney at law and certified to such an

officer as provided in paragraph (3).

(ii)  Evidenced by the officer's certificate, under

official seal.

(iii)  Attached or annexed to the power of attorney.

(iv)  In substantially the same form and content as

follows:

Acknowledgment by Principal

Commonwealth of Pennsylvania (or State of          )

County of          

The principal whose name is signed to the attached or

foregoing instrument, having been duly qualified according to

law, did hereby acknowledge that he or she signed the instrument

as a power of attorney willingly and as a free and voluntary act

for the purposes therein expressed.

Sworn to or affirmed and acknowledged before me by        ,

the principal, this    day of       , 20  .

(Signature of officer or attorney)

(Seal and official capacity of officer or

state of admission of attorney and Supreme Court

Identification No.         )

Affidavit by Witnesses

Commonwealth of Pennsylvania (or State of              )

County of           

We (or I)                  and          , the witness(es)

whose name(s) are (is) signed to the attached or foregoing

instrument, being duly qualified according to law, do depose and

say that we were (I was) present and saw the principal sign the

instrument as a power of attorney willingly and as a free and

voluntary act for the purposes therein expressed, that we (or I)

signed the power of attorney as witness(es) in the hearing and

sight of the principal, and that to the best of our (my)

knowledge the principal was at that time 18 or more years of

age, of sound mind and under no constraint or undue influence.

Sworn to or affirmed and subscribed before me by        

         and          , witness(es), this          day

 of          , 20  .

(Witness)

(Witness)

(Signature of officer or attorney)

(Seal and official capacity of officer or

state of admission of attorney and Supreme Court

Identification No.          )

(3)  The acknowledgment of the principal and the

affidavit of a witness required by this subsection may be

made before a member of the bar of the Supreme Court of

Pennsylvania or of the highest court of the state in which

execution of the power of attorney occurs who certifies to an

officer authorized to administer oaths that the

acknowledgment and affidavits were made before that member of

the bar. In such case, in addition to the acknowledgment and

affidavits required by this subsection, the attorney's

certification shall be evidenced by the officer before whom

it was made substantially as follows:

Commonwealth of Pennsylvania (or State of          )

County of              .

On this, the        day of       , 20  , before me        ,

the undersigned officer, personally appeared               ,

known to me or satisfactorily proven to be a member of the bar

of the highest court of (Pennsylvania or the state in which

execution of the power of attorney took place), and certified

that he or she was personally present when the foregoing

acknowledgment and affidavits were made by the principal and

witnesses.

In witness whereof, I hereunto set my hand and official seal.

(Signature, seal and official capacity of

officer)

* * *

(e.1)  Limitation on applicability in commercial

transaction.--

(1)  Subsections (b), (b.1), (c), (d) and (e) do not

apply to a power or a power of attorney contained in an

instrument used in a commercial transaction which simply

authorizes an agency relationship. This paragraph includes

the following:

(i)  A power given to or for the benefit of a

creditor in connection with a loan or other credit

transaction.

(ii)  A power exclusively granted to facilitate

transfer of stock, bonds and other assets.

(iii)  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.

(iv)  A warrant of attorney conferring authority to

confess judgment.

(v)  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).

(2)  Powers and powers of attorney exempted by this

subsection need not be dated.

(e.2)  Limitation on applicability in health care power of

attorney.--Subsections (b), (b.1), (c) and (d) do not apply to a

power of attorney which exclusively provides for health care

decision making.

* * *

§ 5602.  Form of power of attorney.

* * *

(c)  Filing of power of attorney.--An originally executed

[copy of the] power of attorney may be filed with the clerk of

the orphans' court division of the court of common pleas in the

county in which the principal resides, and if it is

acknowledged, it may be recorded in the office for the recording

of deeds of the county of the principal's residence and of each

county in which real property to be affected by an exercise of

the power is located. The clerk of the orphans' court division

or any office for the recording of deeds with whom the power has

been filed, may, upon request, issue certified copies of the

power of attorney. Each such certified copy shall have the same

validity and the same force and effect as if it were the

original, and it may be filed of record in any other office of

this Commonwealth (including, without limitation, the clerk of

the orphans' court division or the office for the recording of

deeds) as if it were the original.

(d)  Copy of power of attorney.--Except for the purpose of

filing under subsection (c), a photocopy or electronically

transmitted copy of an originally executed power of attorney has

the same effect as the original.

Section 2.  Section 5608 of Title 20 is amended to read: 

§ 5608.  Liability.

(a)  Third party liability.--

(1)  Any person who is given instructions by a person

claiming to be an agent [in accordance with the terms of a]

acting under a document appearing to be a valid power of

attorney shall comply with the instructions if the action

requested is authorized under the terms of the document.

(2)  Any person who without reasonable cause fails to

comply with those instructions shall be subject to civil

liability for any damages resulting from noncompliance.

(3)  Reasonable cause under this subsection shall

include, but not be limited to, [a] any of the following:

(i)  A reasonable good faith belief that:

(A)  the document presented is void, invalid or

terminated;

(B)  the agent's apparent authority is void,

invalid or terminated; or

(C)  the agent is exceeding or improperly

exercising the agent's apparent authority.

(ii)  A good faith report having been made by the

[third party] person to whom instructions have been given

by the agent 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, or section 302 of the act of October 7,

2010 (P.L.484, No.70), known as the Adult Protective

Services Act.

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

good faith reliance on a document appearing to be a valid power

of attorney shall incur no liability as a result of acting in

accordance with the instructions of the person claiming to be an

agent.

Section 3.  This act shall apply as follows:

(1)  The amendment of 20 Pa.C.S. § 5601(b) and (b.1)

shall only apply to a power of attorney executed on or after

the effective date of this section.

(2)  The amendment of 20 Pa.C.S. § 5608 shall apply to:

(i)  A power of attorney executed before, on or after

the effective date of this section.

(ii)  An action, by a third party or person to whom

instructions have been given by an agent, occurring

before, on or after the effective date of this section.

Section 4.  This act shall take effect as follows:

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

(b.1), (e.1) and (e.2) shall take effect in six months.

(2)  The amendment or addition of 20 Pa.C.S. §§ 5602(c)

and (d) and 5608 shall take effect immediately.

(3)  This section shall take effect immediately.