Was Your Pennsylvania Power of Attorney Signed Before January 1, 2015?

A Pennsylvania power of attorney that was validly signed before January 1, 2015 does not have to be redone just because the law changed. That is the short answer. Maybe a bank is hesitating over your document, or you have read that “the law changed in 2015” and are wondering whether the one in your drawer still works. This page explains what changed, why institutions still question older documents, and what to check in the one you have. A financial power of attorney is one of the core estate planning documents, so it is worth getting right.

What changed on January 1, 2015

Pennsylvania’s power of attorney law was rewritten by Act 95 of 2014, approved on July 2, 2014. A few provisions took effect that day. The rest, including the new signing rules, took effect on January 1, 2015 (Act 95 of 2014, Section 10).

The key point is that the new signing rules, and the rewritten notice and acknowledgment, apply only to powers of attorney created on or after their effective dates (Act 95 of 2014, Section 9(3)). A document signed in 2009 is not measured against a checklist written in 2014.

Two other rules help older documents. Every Pennsylvania power of attorney is presumed durable, meaning it keeps working if you later lose capacity, unless it says otherwise (20 Pa.C.S. § 5601.1). And unless the document states a time when it ends, it stays valid “notwithstanding the lapse of time since its execution” (20 Pa.C.S. § 5604(b)). The full text of Chapter 56 is on the Pennsylvania General Assembly’s website.

What a power of attorney signed today needs

A financial power of attorney signed now needs the following (20 Pa.C.S. § 5601):

• A date and your signature. If you cannot sign, another person may sign at your direction, and that person cannot be a witness (§ 5601(b)(1)-(2)).
• A notary. Your signature must be acknowledged before a notary or another person authorized to take acknowledgments. That person cannot be your agent (§ 5601(b)(3)(i)).
• Two adult witnesses. Each must be 18 or older. Neither can be your agent, the notary, or anyone who signed for you (§ 5601(b)(3)(ii)).
• The notice. The document must begin with the statutory notice in capital letters, signed by you (§ 5601(c)).
• The agent’s acknowledgment. Your agent cannot act until they sign and attach an acknowledgment promising to act in good faith, within the authority given, and in line with your reasonable expectations (§ 5601(d)).

The notary-plus-two-witnesses rule applies to documents signed from 2015 on. Act 95 also rewrote the wording of the notice and the agent’s acknowledgment, for new documents only (Act 95, Section 9(3)). If your older document has no notice page or no signed acknowledgment, that is worth bringing in.

Documents signed since 2015 must also spell out certain sensitive powers before the agent can use them. These include making gifts, changing beneficiary designations, and creating or changing a trust (with limited exceptions) (20 Pa.C.S. § 5601.4(a)).

Health care powers of attorney follow different rules

Medical decisions sit in a separate chapter. An “advance health care directive” means a health care power of attorney, a living will, or a written combination of the two (20 Pa.C.S. § 5422), and the two may be combined in one document (§ 5433(b)). The rules are in Chapter 54.

A power of attorney that deals exclusively with health care is exempt from the notary, notice and acknowledgment requirements of Chapter 56, though it still needs two witnesses (20 Pa.C.S. § 5601(e.2)). The word “exclusively” matters. If your document combines financial and health care powers, it does not fall within that exemption, and we would read it against the financial rules as well.

Why the bank is hesitating, and what the law expects of it

Often a staff member compares a 2009 document with today’s checklist, sees no notary or only one witness, and stops. For the reasons above, that is the wrong comparison.

The law also says what an institution must do when you present a power of attorney. These rules took effect on July 2, 2014. Subject to the exceptions discussed below, 20 Pa.C.S. § 5608.1(a) says:

• Within seven business days of presentation, the institution must either accept the power of attorney or ask for supporting information. It can ask for a statement from the agent under penalty of perjury on any factual matter, or an agent’s affidavit. It can ask for an English translation if the document contains another language, or an opinion of counsel if it gives its reason in writing (§ 5608(e)).
• Once it receives what it asked for, it must accept the document within five business days. The exception is when the response gives it a substantial reason to ask for more.
• It may not require an additional or different form of power of attorney for authority your document already grants. “Please sign our form instead” is not, on its own, a lawful condition.

A translation or opinion of counsel is at the principal’s expense, unless the institution asks for it more than seven business days after the document was presented (§ 5608(g)). That is one more reason to ask early, in writing, exactly what the institution needs.

The agent has tools here. An affidavit that the agent had no actual knowledge that the power was revoked or ended (20 Pa.C.S. § 5606), or a signed statement of the relevant facts (§ 5608(e)), is something the institution may rely on without further investigation. A photocopy of the original generally has the same effect as the original, except for filing or recording (§ 5602(d)).

Institutions do have legitimate reasons to refuse (§ 5608.1(b)). These include:

• the institution would not otherwise have to do that transaction with you
• the transaction would conflict with Chapter 56 or another law, for example because the agent’s acknowledgment is missing
• it knows the authority has ended
• the agent refuses to provide requested information
• it believes in good faith that the document is not valid
• it has reported suspected abuse to protective services

The acceptance rules also do not apply to a power of attorney governed by another state’s law, or to a form prescribed by a government agency (§ 5608.1(d)). An institution that refuses in violation of the statute can be ordered to accept and can be liable for financial harm the refusal causes (§ 5608.1(c)). None of this means a quick yes, but it does mean the conversation with the bank has rules.

What to check in the power of attorney you already have

An older document can be perfectly valid and still be worth a careful read. We look at:

• The notice. Is it at the front, and did you sign it? If it is missing or unsigned, that is worth raising with us.
• The agent’s acknowledgment. Did each agent sign one, and is it attached? A missing acknowledgment is one of the listed reasons an institution may refuse.
• The people. Are your agents and successors still alive, willing and suitable?
• Timing. Does the document end on a stated date, or does it only take effect on incapacity (§ 5604(a))?
• Gifting authority. The 2015 gifting rules apply only to documents created on or after January 1, 2015 (Act 95, Section 9(3)). An older document is governed by the rules that applied when it was signed, so what yours allows depends on its exact wording. This matters for asset protection planning and long-term care.
• Guardian nomination. Does it nominate a guardian if one is ever needed (§ 5604(c)(2))?
• Real estate. Was it acknowledged before a notary? Only an acknowledged power of attorney can be recorded with the recorder of deeds (§ 5602(c)).
• Health care powers and divorce. If it covers health care and names a spouse, a divorce filing revokes that designation unless the document says otherwise (§ 5430(a)).

A power of attorney works alongside the rest of your plan. We have written about how a living trust handles incapacity differently and what a complete Pennsylvania estate plan includes.

Common questions

Do I have to sign a new power of attorney because of the 2015 law?

No. The new signing rules, including the notary-plus-two-witnesses rule, apply only to documents created on or after January 1, 2015 (Act 95, Section 9(3)). You may still want to update it for other reasons.

My bank says the power of attorney is too old. Is that right?

Pennsylvania law says a power of attorney stays valid however long ago it was signed, unless it states an end date (§ 5604(b)). Generally, the bank has seven business days to accept it or ask for supporting information, unless one of the exceptions in § 5608.1(b) or (d) applies (§ 5608.1(a)).

Does a health care power of attorney need a notary?

No. It needs your dated signature and two adult witnesses (§ 5452), and a health care-only document is exempt from the notary requirement (§ 5601(e.2)).

Can the bank make me use its own form?

Generally not for authority your document already grants (§ 5608.1(a)(3)), unless one of the exceptions in § 5608.1(b) or (d) applies.

Bring the power of attorney you already have

If you hold an older power of attorney, for yourself or a parent, bring it in. We will read it against the rules that applied when it was signed and tell you whether it needs anything, or whether it is fine as it is. If it does need work, you will have a written fee proposal before any work begins. You can see the rest of our estate planning work here.

Joseph F. Leeson III trained and practiced as a CPA before he practiced law, with four years in tax accounting. He holds a JD from Indiana University Maurer School of Law and an MBA in accounting from DeSales University. He was born and raised in Bethlehem.

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If a bank is refusing a document right now, say so when you call and Leeson & Co. will tell you what to ask for first, whether or not you hire us.

This page explains general principles of Pennsylvania law and is not legal advice for your situation. Laws and procedures change. Please speak to us before acting on anything here.