THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

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

AS AMENDED ON THIRD CONSIDERATION, SEPTEMBER 25, 2012   

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

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of attorney and for liability and for special rules for

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gifts; providing for agent's duties and for principles of law

and equity; further providing for form of power of attorney,

for implementation of power of attorney 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(b), (e.1) and (e.2) and 5602(c) of

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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.

Section 1.  Section 5601(b), (c), (d), (e), (e.1)(1)

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introductory paragraph and (f) of Title 20 of the Pennsylvania

Consolidated Statutes are amended to read:

§ 5601.  General provisions.

* * *

(b)  Execution.--

(1)  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.

(2)  If the power of attorney is executed by mark or by

another individual, then it shall be 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.

(3)  For a power of attorney executed on or after January

1, 2013, the signature of the principal, or other individual

signing a power of attorney on behalf of the principal, shall

be acknowledged before a notary public or other individual

authorized by law to take acknowledgments.

(c)  Notice.--All powers of attorney shall include the

following notice in capital letters at the beginning of the

power of attorney. The notice shall be signed by the principal.

In the absence of a signed notice, upon a challenge to the

authority of an agent to exercise a power under the power of

attorney, the agent shall have the burden of demonstrating that

the exercise of this authority is proper.

NOTICE

The purpose of this power of attorney is to give the

person you designate (your "agent") broad powers to handle

your property, which may include powers to sell or otherwise

dispose of any real or personal property without advance

notice to you or approval by you.

This power of attorney does not impose a duty on your

agent to exercise granted powers, but when powers are

exercised, your agent must use due care to act for your

benefit and in accordance with this power of attorney.

Your agent may exercise the powers given here throughout

your lifetime, even after you become incapacitated, unless

you expressly limit the duration of these powers or you

revoke these powers or a court acting on your behalf

terminates your agent's authority.

Your agent must [keep your funds separate from your

agent's funds] act in accordance with your reasonable

expectations to the extent actually known by your agent and,

otherwise, in your best interest, act in good faith and act

only within the scope of authority granted by you in the

power of attorney.

The law permits you, if you choose, to grant broad

authority to an agent under power of attorney, including the

ability to give away all of your property while you are alive

or to substantially change how your property is distributed

at your death. Before signing this document you should seek

the advice of an attorney at law to make sure you understand

it.

A court can take away the powers of your agent if it

finds your agent is not acting properly.

The powers and duties of an agent under a power of

attorney are explained more fully in 20 Pa.C.S. Ch. 56.

If there is anything about this form that you do not

understand, you should ask a lawyer of your own choosing to

explain it to you.

I have read or had explained to me this notice and I I

have read or had explained to me this notice and I understand

its contents.

(d)  Acknowledgment executed by agent.--An agent shall have

no authority to act as agent under the power of attorney unless

the agent has first executed and affixed to the power of

attorney an acknowledgment in substantially the following form:

attorney and am the person identified as the agent for

the principal. I hereby acknowledge that [in the absence

of a specific provision to the contrary in the power of

attorney or in 20 Pa.C.S.] when I act as agent:

I shall [exercise the powers for the benefit of the

principal] act in accordance with the principal's

reasonable expectations to the extent actually known by

me and, otherwise, in the principal's best interest, act

in good faith and act only within the scope of authority

granted to me by the principal in the power of attorney.

[I shall keep the assets of the principal separate

from my assets.

I shall exercise reasonable caution and prudence.

I shall keep a full and accurate record of all

actions, receipts and disbursements on behalf of the

principal.]

[(e)  Fiduciary relationship.--An agent acting under a power

of attorney has a fiduciary relationship with the principal. In

the absence of a specific provision to the contrary in the power

of attorney, the fiduciary relationship includes the duty to:

(1)  Exercise the powers for the benefit of the

principal.

(2)  Keep separate the assets of the principal from those

of an agent.

(3)  Exercise reasonable caution and prudence.

(4)  Keep a full and accurate record of all actions,

receipts and disbursements on behalf of the principal.]

(e.1)  Limitation on applicability in commercial

transaction.--

(1)  Subsections [(c), (d) and (e)] (b)(2) and (3), (c)

and (d) and section 5601.3 (relating to agents' duties) 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:

* * *

(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 chapter 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.

Section 2.  Section 5601.2 of Title 20 is repealed:

[§ 5601.2.  Special rules for gifts.

(a)  General rule.--A principal may empower an agent to make

a gift in a power of attorney only as provided in this section.

(b)  Limited gifts.--A principal may authorize an agent to

make a limited gift as defined under section 5603(a)(2)

(relating to implementation of power of attorney) by the

inclusion of:

(1)  the language quoted in section 5602(a)(1) (relating

to form of power of attorney); or

(2)  other language showing a similar intent on the part

of the principal to empower the agent to make a limited gift.

(c)  Unlimited gifts.--A principal may authorize an agent to

make any other gift only by specifically providing for and

defining the agent's authority in the power of attorney.

(d)  Nature of gifts.--In the absence of a specific provision

to the contrary in the power of attorney:

(1)  A power to make a limited gift shall be construed to

empower the agent to make a gift to each donee either

outright or in trust.

(2)  In the case of any gift to a minor, that gift may be

made in trust or in accordance with Chapter 53 (relating to

Pennsylvania Uniform Transfers to Minors Act) or section 5155

(relating to order of court).

(3)  In the case of any gift made in trust, the agent may

execute a deed of trust for such purpose, designating one or

more persons, including the agent, as original or successor

trustees, or may make an addition to an existing trust.

(4)  In making any gift, the agent need not treat the

donees equally or proportionately and may entirely exclude

one or more permissible donees.

(5)  The pattern followed on the occasion of any gift

need not be followed on the occasion of any other gift.

(e)  Equity.--An agent and the donee of a gift shall be

liable as equity and justice may require to the extent that, as

determined by the court, a gift made by the agent is

inconsistent with prudent estate planning or financial

management for the principal or with the known or probable

intent of the principal with respect to disposition of the

estate.

(f)  Third party.--No transfer agent, depository or other

third party acting in good faith shall have any responsibility

to see to the proper discharge of the agent's duty.]

Section 3.  Title 20 is amended by adding sections to read:

§ 5601.3.  Agent's duties.

(a)  General rule.--Notwithstanding any provision in the

power of attorney, an agent that has accepted appointment shall:

(1)  Act in accordance with the principal's reasonable

expectations to the extent actually known by the agent and,

otherwise, in the principal's best interest.

(2)  Act in good faith.

(3)  Act only within the scope of authority granted in

the power of attorney.

(b)  Other duties.--Except as otherwise provided in the power

of attorney, an agent that has accepted appointment shall:

(1)  Act loyally for the principal's benefit.

(2)  Act so as not to create a conflict of interest that

impairs the agent's ability to act impartially in the

principal's best interest.

(3)  Act with the care, competence and diligence

ordinarily exercised by agents in similar circumstances.

(4)  Keep a record of all receipts, disbursements and

transactions made on behalf of the principal.

(5)  Cooperate with a person who has authority to make

health-care decisions for the principal to carry out the

principal's reasonable expectations to the extent actually

known by the agent and, otherwise, act in the principal's

best interest.

(6)  Attempt to preserve the principal's estate plan, to

the extent actually known by the agent, if preserving the

plan is consistent with the principal's best interest based

on all relevant factors, including:

(i)  The value and nature of the principal's

property.

(ii)  The principal's foreseeable obligations and

need for maintenance.

(iii)  Minimization of taxes, including income,

estate, inheritance, generation-skipping transfer and

gift taxes.

(iv)  Eligibility for a benefit, program or

assistance under a statute or regulation.

(c)  Nonliability of agent.--

(1)  An agent that acts in good faith shall not be liable

to a beneficiary of the principal's estate plan for failure

to preserve the plan.

(2)  An agent that acts with care, competence and

diligence for the best interest of the principal shall not be

liable solely because the agent also benefits from the act or

has an individual or conflicting interest in relation to the

property or affairs of the principal.

(3)  If an agent is selected by the principal because of

special skills or expertise possessed by the agent or in

reliance on the agent's representation that the agent has

special skills or expertise, the special skills or expertise

must be considered in determining whether the agent has acted

with care, competence and diligence under the circumstances.

(4)  Absent a breach of duty to the principal, an agent

shall not be liable if the value of the principal's property

declines.

(5)  An agent that exercises authority to delegate to

another person the authority granted by the principal or that

engages another person on behalf of the principal shall not

be liable for an act, error of judgment or default of that

person if the agent exercises care, competence and diligence

in selecting and monitoring the person.

(d)  Disclosure of receipts, disbursements or transactions.--

(1)  Except as otherwise provided in the power of

attorney, an agent shall not be required to disclose

receipts, disbursements or transactions conducted on behalf

of the principal unless ordered by a court or requested by

the principal, a guardian, conservator, another fiduciary

acting for the principal, governmental agency having

authority to protect the welfare of the principal or, upon

the death of the principal, the personal representative or

successor in interest of the principal's estate.

(2)  Within 30 days of the request, the agent shall

either comply with the request or provide a writing or other

record substantiating the reason additional time is needed,

in which case the agent shall comply with the request within

an additional 30 days.

§ 5601.4. Authority that requires specific and general grant of

authority.

(a)  General rule.--An agent under a power of attorney may do

the following on behalf of the principal or with the principal's

property only if the power of attorney expressly grants the

agent the authority and exercise of the authority is not

otherwise prohibited by another agreement or instrument to which

the authority or property is subject:

(1)  Create, amend, revoke or terminate an inter vivos

trust other than as permitted under section 5602(a)(2), (3)

and (7) (relating to form of power of attorney).

(2)  Make a gift.

(3)  Create or change rights of survivorship.

(4)  Create or change a beneficiary designation.

(5)  Delegate authority granted under the power of

attorney.

(6)  Waive the principal's right to be a beneficiary of a

joint and survivor annuity, including a survivor benefit

under a retirement plan.

(7)  Exercise fiduciary powers that the principal has

authority to delegate.

(8)  Disclaim property, including a power of appointment.

(b)  Limitation.--Notwithstanding a grant of authority to do

an act described in subsection (a), unless the power of attorney

otherwise provides, an agent that is not an ancestor, spouse or

descendant of the principal may not exercise authority under a

power of attorney to create in the agent, or in an individual to

whom the agent owes a legal obligation of support, an interest

in the principal's property, whether by gift, right of

survivorship, beneficiary designation, disclaimer or otherwise.

(c)  Scope of authority.--Subject to subsections (a), (b),

(d), and (e), if a power of attorney grants to an agent

authority to do all acts that a principal is authorized to

perform, the agent has the general authority described in

section 5602(a).

(d)  Gifts.--Unless the power of attorney otherwise provides,

a grant of authority to make a gift is subject to section

5603(a.1) (relating to implementation of power of attorney).

(e)  Similar or overlapping subjects.--Subject to subsections

(a), (b) and (d), if the subjects over which authority is

granted in a power of attorney are similar or overlap, the

broadest authority controls.

(f)  Property.--Authority granted in a power of attorney is

exercisable with respect to property that the principal has when

the power of attorney is executed or acquires later, whether or

not the property is located in this State and whether or not the

authority is exercised or the power of attorney is executed in

this State.

(g)  Legal effect of agent's actions.--An act performed by an

agent pursuant to a power of attorney has the same effect and

inures to the benefit of and binds the principal and the

principal's successors in interest as if the principal had

performed the act.

Section 4.  Section 5602(a)(5) and (17) of Title 20 are

amended to read:

§ 5602.  Form of power of attorney.

(a)  Specification of powers.--A principal may, by inclusion

of the language quoted in any of the following paragraphs or by

inclusion of other language showing a similar intent on the part

of the principal, empower an agent to do any or all of the

following, each of which is defined in section 5603 (relating to

implementation of power of attorney):

* * *

[(5)  "To disclaim any interest in property."]

* * *

(17)  "To engage in insurance and annuity transactions."

* * *

Section 5.  Section 5603(a), (e), (p) and (q) of Title 20 are

amended and the section is amended by adding a subsection to

read:

§ 5603.  Implementation of power of attorney.

[(a)  Power to make limited gifts.--

(2)  A power "to make limited gifts" shall mean that the

agent may make only gifts for or on behalf of the principal

which are limited as follows:

(i)  The class of permissible donees under this

paragraph shall consist solely of the principal's spouse,

issue and a spouse of the principal's issue (including

the agent if a member of any such class), or any of them.

(ii)  During each calendar year, the gifts made to

any permissible donee, pursuant to such power, shall have

an aggregate value not in excess of, and shall be made in

such manner as to qualify in their entirety for, the

annual exclusion from the Federal gift tax permitted

under section 2503(b) of the Internal Revenue Code of

1986 (Public Law 99-514, 26 U.S.C. § 1 et seq.) for the

principal and, if applicable, the principal's spouse.

(iv)  In addition to the gifts authorized by

subparagraphs (i) and (ii), a gift made pursuant to such

power may be for the tuition or medical care of any

permissible donee to the extent that the gift is excluded

from the Federal gift tax under section 2503(e) of the

Internal Revenue Code of 1986 as a qualified transfer.

(v)  The agent may consent, pursuant to section

2513(a) of the Internal Revenue Code of 1986, to the

splitting of gifts made by the principal's spouse to the

principal's issue or a spouse of the principal's issue in

any amount and to the splitting of gifts made by the

principal's spouse to any other person in amounts not

exceeding the aggregate annual gift tax exclusions for

both spouses under section 2503(b) of the Internal

Revenue Code of 1986.]

(a.1)  Power to make limited gifts.--

(1)  Unless the power of attorney otherwise provides,

language in a power of attorney granting general authority

with respect to gifts authorizes the agent only to:

(i)  Make outright to or for the benefit of a person,

a gift of any of the principal's property, including by

the exercise of a presently exercisable general power of

appointment held by the principal:

(A)  in an amount per donee not to exceed the

annual dollar limits of the Federal gift tax

exclusion under section 2503(b) of the Internal

Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. §

2503(b)), without regard to whether the Federal gift

tax exclusion applies to the gift; or

(B)  if the principal's spouse agrees to consent

to a split gift pursuant to section 2513 of the

Internal Revenue Code of 1986, in an amount per donee

not to exceed twice the annual Federal gift tax

exclusion limit.

(ii)  Consent, pursuant to section 2513 of the

Internal Revenue Code of 1986, to the splitting of a gift

made by the principal's spouse in an amount per donee not

to exceed the aggregate annual gift tax exclusions for

both spouses.

(2)  An agent may make a gift of the principal's property

only as the agent determines is consistent with the

principal's objectives if actually known by the agent and, if

unknown, as the agent determines is consistent with the

principal's best interest based on all relevant factors,

including:

(i)  The value and nature of the principal's

property.

(ii)  The principal's foreseeable obligations and

need for maintenance.

(iii)  Minimization of taxes, including income,

estate, inheritance, generation-skipping transfer and

gift taxes.

(iv)  Eligibility for a benefit, program or

assistance under a statute or regulation.

(v)  The principal's personal history of making or

joining in making gifts.

(3)  As used in this subsection, the phrase "a gift for

the benefit of a person" includes a gift to a trust, an

account under Chapter 53 (relating to Pennsylvania Uniform

Transfers to Minors Act) and a tuition savings account or

prepaid tuition plan as defined under section 529 of the

Internal Revenue Code of 1986.

* * *

[(e)  Power to disclaim any interest in property.--A power

"to disclaim any interest in property" shall mean that the agent

may release or disclaim any interest in property on behalf of

the principal in accordance with Chapter 62 (relating to

disclaimers) or section 6103 (relating to release or disclaimer

of powers or interests), provided that any disclaimer under

Chapter 62 shall be in accordance with the provisions of section

6202 (relating to disclaimers by fiduciaries or agents) in the

case of a principal who shall have been adjudicated an

incapacitated person at the time of the execution of the

disclaimer.]

* * *

(p)  Power to engage in insurance and annuity transactions.--

A power to "engage in insurance and annuity transactions" shall

mean that the agent may:

(1)  Purchase, continue, renew, convert or terminate any

type of insurance (including, but not limited to, life,

accident, health, disability or liability insurance) or

annuity and pay premiums and collect benefits and proceeds

under insurance policies and annuity contracts.

(2)  Exercise nonforfeiture provisions under insurance

policies and annuity contracts.

(3)  In general, exercise all powers with respect to

insurance and annuities that the principal could if present;

[however, the agent cannot designate himself beneficiary of a

life insurance policy unless the agent is the spouse, child,

grandchild, parent, brother or sister of the principal. An

agent and a beneficiary of a life insurance policy shall be

liable as equity and justice may require to the extent that,

as determined by the court, a beneficiary designation made by

the agent is inconsistent with the known or probable intent

of the principal] provided, however, that the agent shall

have no power to create or change a beneficiary designation

unless authorized in accordance with section 5601.4 (relating

to authority that requires specific and general grant of

authority).

(q)  Power to engage in retirement plan transactions.--A

power to "engage in retirement plan transactions" shall mean

that the agent may contribute to, withdraw from and deposit

funds in any type of retirement plan (including, but not limited

to, any tax qualified or nonqualified pension, profit sharing,

stock bonus, employee savings and retirement plan, deferred

compensation plan or individual retirement account), select and

change payment options for the principal, make roll-over

contributions from any retirement plan to other retirement plans

and, in general, exercise all powers with respect to retirement

plans that the principal could if present[. However, the agent

cannot designate himself beneficiary of a retirement plan unless

the agent is the spouse, child, grandchild, parent, brother or

sister of the principal. An agent and a beneficiary of a

retirement plan shall be liable as equity and justice may

require to the extent that, as determined by the court, a

beneficiary designation made by the agent is inconsistent with

the known or probable intent of the principal] provided,

however, that the agent shall have no power to create or change

a beneficiary designation unless authorized in accordance with

section 5601.4.

* * *

Section 6.  Section 5608 of Title 20 is amended to read:

§ 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 who in good faith accepts a 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 of:

(1)  The principal.

(2)  A person directed by the principal on the

principal's behalf and in the principal's conscious presence

to sign the power of attorney.

(3)  A witness.

(4)  A notary public or other person authorized by law to

take acknowledgments.

(d)  Immunity.--A person who 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 and agent's authority were genuine, valid and

still in effect and the agent had not exceeded and had properly

exercised the authority that:

(1)  The power of attorney is void, invalid or

terminated.

(2)  The purported agent's authority is void, invalid or

terminated.

(3)  The agent is exceeding or improperly exercising the

agent's authority.

(e)  Request for information.--A person who 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 relating to whether the agent

is acting within the scope of the authority granted by 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 who has

accepted a power of attorney, whether or not the person has 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 shall be 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.--

(1)  For purposes of this section, a person who 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

knowledge of the fact.

(2)  An employee has knowledge of a fact if the employee

has actual knowledge of the fact or acts with conscious

disregard or willful ignorance regarding the existence of the

fact.

(i)  Limitations.--Except as otherwise provided by law,

nothing in this section shall in itself:

(1)  validate a forged instrument conveying an interest

in real property;

(2)  provide that the recording of a forged instrument

gives constructive notice of a conveyance of an interest in

real property; or

(3)  limit the liability of insurer, indemnitor or

guarantor of contractual obligations to indemnify, hold

harmless or defend a person who accepts or relies upon a

power of attorney.

Section 7.  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:

(i)  accept a power of attorney; or

(ii)  request one of the following:

(A)  affidavit under section 5606 (relating to

proof of continuance of powers of attorney by

affidavit); or

(B)  a certification, translation or an opinion

of counsel under section 5608(e) (relating to

acceptance of and reliance upon power of attorney);

not later than seven business days after presentation of the

power of attorney for acceptance.

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

an affidavit under section 5606 or an opinion of counsel

under section 5608(e), the person shall accept the power of

attorney not later than five business days after receipt of

the certification, translation, affidavit or opinion of

counsel or, unless the information provided by the

certification, translation, affidavit or opinion of counsel

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 the 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

affidavit under section 5606 or an opinion of counsel under

section 5608(e) is refused, including a certification, an

affidavit or an opinion of counsel 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 the agent does not have the

authority to perform the act requested, whether or not a

certification, a translation, an affidavit under section 5606

or opinion of counsel under section 5608(e) 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 the 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

under section 302 of the Older Adults Protective Services

Act, stating a good faith belief that the principal may be

subject to physical or financial abuse, neglect, exploitation

or abandonment by the agent or someone acting for or with the

agent.

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

section, to accept a power of attorney shall be subject to civil

liability for pecuniary harm to the economic interests of the

principal proximately caused by the person's refusal to comply

with the instructions of the agent designated in the power of

attorney.

(d)  Nonapplicability.--The requirements of this section

shall not apply to:

(1)  a power of attorney subject to the laws of another

state or jurisdiction; or

(2)  a power of attorney prescribed by a government or

governmental subdivision, agency or instrumentality for a

governmental purpose.

(e)  Activities through employees.--

(1)  For purposes of this section, a person who 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

knowledge of the fact.

(2)  An employee has knowledge of a fact if the employee

has actual knowledge of the fact or acts with conscious

disregard or willful ignorance regarding the existence of the

fact.

Section 8.  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.] 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 9.  Title 20 is amended by adding a section read:

§ 5612.  Principles of law and equity.

Unless displaced by a provision of this chapter, the

principles of law and equity supplement this chapter.

Section 10. 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 11.  This act shall take effect in 60 days.