As a Notary, you may not help customers draft a Power of Attorney (“POA”), as this can be interpreted to be the unlicensed practice of law. A POA should be drafted with the advice and guidance of an attorney.
In addition these changes take effect as of January 1, 2015:
· The principal must sign the POA in front of two witnesses and each witness must be over the age of 18. If the principal cannot sign they may designate someone to sign on the principal’s behalf.
· The requirement of two witnesses does not apply to certain powers of attorney as described in the Act such as the secure POA used by motor vehicle dealers.
· The principal must acknowledge his or her signature. The principal must appear before a notary public or other individual authorized by law to take acknowledgements. The requirement for notarization does not apply to a POA which exclusively provides for making health care or mental health care decisions.
· The agent named in the POA cannot act as the notary or individual authorized to take the acknowledgement.
· The notary, the agent, and any individuals who sign the POA on behalf of the principal cannot appear as witnesses.
· Effective Jan 1, new language must be inserted – the notice to the principal that must appear, has to be in capital letters at the beginning of the document
· The notice was revised to remove the statement that the agent must keep his/her funds separate from those of the principal.
· The agent must act in accordance with the principal’s “reasonable expectations to the extent actually known” and in the best interests of the principal in good faith and within the scope of the authority granted. ( The same language is used in the agent’s acknowledgment.)
· The principal can grant the agent authority to give away all of the principal’s property while the principal is alive or substantially change how the principal’s property is distributed after death, and;
· Before signing the POA the principal should seek the advice of an attorney to be sure the principal understands the document.
Like the witness requirement the notice to the principal and the agent’s acknowledgment are not required on certain POA’s described in the Act. However, the Act authorizes that a third party can reject a POA if a required notice or acknowledgment is not included.
The Act contains a mechanism for third parties to request additional assurances that the POA is valid. Third parties may, within seven (7) days:
1. Request the agent to swear to or affirm any factual matter concerning the principal, agent or POA;
2. Request an English translation at the principal’s expense;
3. Request from an attorney an opinion relating to whether the agent is acting within the scope of the authority granted by the POA.
Under the new Act a photocopy or electronic copy of an original POA has the same effect as the original, except for purposes of filing or recording with the Orphans’ Court or the recorder of Deeds. Counties are authorized to accept electronic documents for recording. As a result, the ability to file or record a POA electronically may vary from county to county.
The full text is available at www.legis.state.pa.us – type “hb 1429” in the search box.
More amendments to the Pennsylvania’s POA law are expected.