Pennsylvania financial power of attorney documents signed after July 1, 2015 must include the following “NOTICE” in capital letters at the beginning of the power of attorney. Creativity is not permitted when drafting this Notice Page. The language must be exactly as set forth below:
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 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 UNDERSTAND ITS CONTENTS.
We often receive questions about this statutorily required Notice Page when reviewing documents with our clients. Here are a few of the questions, below. These “POA Questions and Answers” are for general information only, and you should not rely on them as a substitute for legal advice for your situation:
Q: Can I change the language of the Notice Page?
A: Pennsylvania’s legislature requires this specific language in all Pennsylvania power of attorney documents signed after July 1, 2015 and changing it could result in the power of attorney not being honored when needed.
Q: The Notice Page on my power of attorney says my agent may be able to give away my property or change how my property is distributed at my death, can I take that sentence out of the Notice Page?
A: You do not need to give these powers to your agent, but the sentence needs to remain in, since PA law requires this specific language on the Notice Page. You decide whether your power of attorney includes language about gifting powers, the ability to create and sever forms of joint ownership, and authority to create and change beneficiary designations. We recommend that you not sign a power of attorney document that is “off the shelf” and not customized for your own situation.
Q: The Notice Page is in all capital letters. This looks like “shouting” to most people and all capital letters make text more difficult to read. Can we change this to lowercase and just capitalize the first letter in each sentence?
A: Unfortunately, no, the law requires the Notice Page to be in all capital letters.
Q: The power of attorney lacks a Notice Page, can I add it now?
A: No. It would be improper for an agent to add this page to the power of attorney document after it has been executed. The Agent Acknowledgement page, however, may be added after the fact. If possible, a new power of attorney should be signed. A lawyer can provide you with guidance before you use the POA.
Q: My POA was signed on or after April 11, 2000 but before July 1, 2015 and sets forth the old Notice Page, is my power of attorney still valid?
A: The Notice Page format did change by law in 2015, but the change in the Notice Page requirement did not invalidate existing power of attorney documents that contain the old Notice Page required by law that became effective in April of 2000. That said, banks and real estate title companies are looking for the new form when they review power of attorney documents and may inaccurately say that the document is invalid due to the lack of an updated Notice Page. We recommend that old power of attorney document forms be updated to the new law so that they are more easily honored by third parties when needed.
Q: My power of attorney document was signed before April 12, 2000 and does not have a Notice Page, is it valid?
A: Power of attorney documents signed back then did not require a Notice Page. It may be possible to use this old document, but if the person who signed it is still able to knowingly sign legal documents, a new one should be signed that is compliant with current law.
Q: What if the Notice Page is there but not signed?
A: If the Notice Page is on the document, but not signed, the agent has the burden of proving that his or her actions were proper. If the Notice Page is signed, then the agent’s actions have a “presumption of correctness” and anybody challenging the agent’s actions would have the burden of proving the agent acted improperly. If you are serving as agent under power of attorney, you definitely want to have the presumption of correctness since this helps protect you from liability.
Q: My power of attorney was signed in the state where I used to reside, and does not have a Notice Page, can it be used in Pennsylvania?
A: Generally speaking, yes, a power of attorney that was validly executed in another state remains as valid as it was in the state where it was executed and should be usable in Pennsylvania. However, your agent may encounter banks or other third parties who decline to honor the power of attorney, so some people opt to sign a new POA in Pennsylvania, even though the existing POA is valid and a new document is not legally required.
In conclusion, if the power of attorney does not contain the required Notice Page, the document may be considered invalid, and actions taken pursuant to the defective power of attorney may be void or voidable. If a required Notice Page is absent, then the power of attorney may not be honored by third parties when needed.
Disclaimer: The above article is provided for general informational purposes only. Please do not rely on this article as a substitute for legal advice for your specific situation.