Powers of attorney are an essential part of every estate plan. These legal documents designate the people (known as agents) you trust to act on your behalf when it comes to medical, financial, and legal decisions. Whereas a will protects your assets after you’ve passed, establishing a power of attorney designates a person to protect your wishes and possessions while you are still alive. When you sign over power of attorney, the document can specify whether that power becomes active immediately, or at a later date when you have become incapacitated. A new power of attorney law went into full effect January 1st, 2015, and now requires all powers of attorney executed in Pennsylvania to be signed in front of a notary and two witnesses.
There are several types of powers of attorney, and you’ll need an experienced estate planning lawyer to help you (the principal) choose your agent(s). Below is a breakdown of the requirements for each type of power of attorney.
Powers of Attorney
- A power of attorney is a document by which someone authorizes someone else to act on his behalf.
- Principal – the person creating the power of attorney.
- Agent – the person designated by the principal to act on his behalf. The agent must act in the best interests of the principal.
- Financial and health care powers. The power of attorney may specify both financial and health care powers. Some prefer to have separate financial and health care documents. May designate different agents for different purposes.
- What are the legal requirements for a power of attorney?
- Must be in writing signed and dated by the principal either by signature or by mark or signed by another on behalf of and at the direction of the principal. If signed by mark or by another, it must be witnessed by two witnesses at least 18 years old. Neither witness may be the person who signed on behalf of the principal.
- Must include the statutory notice in capital letters at the beginning of the document, signed by the principal.
- Agent must sign an acknowledgment in substantially the same form as set forth in the statute, PEF Code Sec. 5601.
- No other form requirements.
- May set forth powers in detail or by reference to statute.
- Must be acknowledged (notarized) if it will be recorded in the recorder of deeds office.
- May appoint more than one agent. If not otherwise stated, they must act jointly.
- Presumed to be the “durable” unless otherwise stated. This means it is effective even if the principal subsequently becomes disabled or incapacitated.
- May provide that it becomes effective only upon some future event such as incapacity.
- No longer valid upon death of principal.
Medical Power of Attorney
The medical power of attorney, sometimes referred to as “durable power of attorney for health care,” is a legal document in which you state your wishes for your own health care. In this document, you also designate someone you trust to make medical decisions on your behalf if you are unable to do so. This agent, or attorney-in-fact, will work with doctors and health care providers to ensure your treatment preferences are followed. Although this person is legally bound to follow your instructions to the best of his or her ability, you’ll want to work with an experienced attorney to choose someone who fully understands your beliefs and preferences.
- Under the living will, also known as an “advance health care directive”, the principal indicates what, if any, measures he may want taken if he is in a terminal condition.
- Surrogate – the person designated by the principal to discuss his care and condition with medical personnel and to make decisions for him according to his wishes.
- What are the legal requirements for a living will?
- Must be at least 18 years old and not have been deemed incapacitated at the time of execution.
- Must be in writing dated and signed by signature or mark by the declarant or by another on his behalf.
- Must have two witnesses aged 18 years or older. Person signing on behalf of another may not also be a witness.
- May take any form. The form set out in PEF Code Sec. 5823 may be used but is not mandatory.
Although establishing powers of attorney is an essential step, it does not constitute an entire estate plan. An attorney at LUONGO BELLWOAR LLP can help ensure you are protected and prepared for any life event. In addition to assisting with powers of attorney, our West Chester team can assist with:
- Setting up trusts
- Setting up wills
- Creating living wills
- Planning for retirement
- Planning for relatives’ educations
For more information about these other services, please visit our Estate Administration page.
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