Survey of Significant Changes in PA Power of Attorney Law

As we've discussed before, the Pennsylvania POA law was changed in July 2014. Some of the changes became effective immediately while other provisions went into effect on January 1, 2015. If you have a power of attorney drafted before the change it is still valid, so long as valid when drafted. Some sections of the new law may affect the manner in which it is used however.

A power of attorney form is a document that allows another individual to make decisions on your behalf if you lose mental capacity or are unable to act. The person executing the document is the "principal" and the person appointed is the "agent." A person to whom the POA is presented is called a "third party" and examples are banks, landlords, utility companies, nursing homes, etc.  In Pennsylvania it is assumed that all POA documents are durable (unaffected by subsequent incapacity of principal) and so it is helpful, but not necessary to designate them as such. Also, a POA expires upon the death of the maker. Although an agent under a POA loses authority at that point, the personal representative named in a will takes over.

The changes in the law were instituted to curtain abuses in use of the documents, and as a result of recent Pennsylvania Supreme Court decision. The issue before the court was what happens if someone relies on a POA document and it is later shown that the principal who signed it was not mentally competent to sign the form, or if it later turns out the form was forged. Is a third party liable for relying on the form, even if they did so in good faith?  The Pennsylvania Supreme Court said that yes, the third party could be held liable for relying on a forged form, or one in which the person did not have the capacity to sign. The new law tries to mitigate that problem and reverse that holding by changes in the law.

These are some of the changes:

First, now every POA document must be signed before a notary and two independent witnesses. That should not be a problem for any of our clients because we, and most other lawyers, have always done that. Even before the new law, this was done to expedite land transfers where notarization and witnesses are required, or in case the POA was used in another state where notarization was required.

Second, The first page of the POA has a new statutory "notice" which must be capital letters and must be signed by the principal  The agent must also sign an acknowledgement which has been updated. The notices and acknowledgements that were valid under the old law are still valid today and do not have to be changed.

Third, The agent now has three mandatory duties while acting under a POA: they must act in good faith; they must act only within the scope of authority granted in the POA, and they must act in accordance with the principal's reasonable expectations if known, or in the principal's best interests if they are not known.The statute imposes additional duties on the agent concerning comingling of funds and record keeping, many of which can be modified in the document itself. However, an agent must keep books and records of all the transactions and acts they perform for the principal and they must be made available on 30 days notice from a court, the local agency on aging who obtains a court order for the records, or anyone holding a fiduciary relationship to the principal. This provision of the law when into effect January 1, 2015 regardless of when the document was signed. It is important that anyone serving as agent have records kept on an accounting program, a spreadsheet, or in a journal and ledger. We are willing to assist in this important obligation.

Fourth. Any third party presented with a POA may now request (i) an agent's written certification regarding factual matters concerning either the principal, the agent, or the POA form itself; (ii) they may request an English translation of any POA in another language; (iii)  if there is any articulable reason for suspicion, they may request a legal opinion confirming that the agent is acting within the scope of authority granted in the POA.  If this request is made within seven days of presentation the agent under the POA must bear the cost of obtaining the legal opinion. In most cases the third party has an additional five days to act after receiving the requested information. Although we currently provide this service free for documents drafted in our office, a disturbing feature of this new law is that a third party can delay acceptance of the POA for up to 12 days by requesting the additional documentation. On the other hand, if the delay is unfounded, the third party may be subject to civil liability.

Fifth, A third-party may be immune from liability if they accept a POA in good faith, without any actual knowledge of it being void or deficient. This is a direct reversal of the Supreme Court decision.

Under the old law anyone who might inherit from the estate could file a petition for an accounting from the agent if they felt the agent was abusing his or her power. That right is removed under the new law, but the personal representative of the estate may request an accounting after the death of the principal. In all documents drafted in our office we specifically designate ourselves as a fiduciary who can demand an accounting from an agent if there is an articulable reason to suspect abuse. Some, but not all, attorneys do the same and there may be others in a fiduciary capacity who can request an accounting.

If  you have any questions about the new law please do not hesitate to call our office. Although it is not necessary that you do so, we are willing to update any POA forms drafted under the old law for a nominal fee. We will continue to provide an opinion of counsel for any document we've drafted, free of charge.

United States Supreme Court Asked To Strike Down Pennsylvania's Funeral Laws.

 Two weeks ago, at the Jenkins Memorial Law Library,  I taught a course about the laws surrounding death and burial. One topic of interest to the lawyers and judges who enrolled in the course, because of the Constitutional issues involved, was the controversy surrounding Pennsylvania's Funeral Laws. Our laws are in a state of flux following a suit brought by a contingent of funeral directors who are now asking the United States Supreme Court to find them so anti-competitive and protectionist, that they are unconstitutional. On the other hand, the State Board of Funeral Directors and the Commonwealth are trying to defend the laws.

This disagreement started when a York County, PA  funeral director named Ernie Heffner challenged  some of the state's laws, as well as the actions of the Board of Funeral Directors. Hefner was later joined by consumer groups such as the Funeral Consumers Alliance and the Institute for Justice. He brought suit in federal court where the judge found the Pennsylvania laws, passed in 1952, outdated and patently unconstitutional.

Some of the contested Pennsylvania laws are:

*Every funeral home must have an embalming room, including those funeral homes that engage exclusively in cremations or green funerals, neither of which use embalming fluid.

* The Pennsylvania board is given the authority to inspect funeral homes with no advance warning, and without a warrant.

* Funeral homes are banned from offering food of any kind although there is no proof of any safety concerns. The funeral directors who brought the suit felt that offering some light refreshments might be appropriate to any gathering of family and friends.

* Funeral homes must be named after the current or former funeral director operating them, despite the fact similar rules in other professions have been ruled unconstitutional.

*A wife of a deceased funeral director may continue to operate the funeral home even though she does not hold a license, but that exception does not apply to any other person.

Following defeat in the lower court, the state board appealed to the Third Circuit Court of Appeals who reversed. The Third Circuit agreed that the laws are outdated, but that alone did not make them unconstitutional, with one exception. They struck down the law mandating the funeral home must be named after one of the owners. They correctly held that state law does not in any way serve to protect the public. After all, Ernie Madoff operated under the insignia of his own name, but nevertheless cheated many of his customers. And so, in the months ahead we may see funeral homes with names such as "Happy Ending Funeral Services" or any derivation thereof.

Undaunted by the loss in the Third Circuit,  the original plaintiffs have filed a writ of Certiori with the United States Supreme Court and is asking them to weigh in on the issue. The U.S. Supreme Court is not obligated to take every case that is filed with them, and we will see if they take on the Pennsylvania case or allow the antiquated laws to stand. 

Stay well until the next post,

Bob Gasparo, Esq.
robert.gasparro@lifespanlegal.com
(484) 451-6612