- For Attorneys
A power of attorney is a legal instrument that gives someone else the authority to make certain decisions and act for the signer. The person who has these powers is called an agent or attorney-in-fact. The person designated to be the agent assumes certain responsibilities, including acting in the principal's best interest and following the principal's directions. In most instances, all the principal needs to do to create a legally valid power of attorney is properly complete and sign (before a notary public) a power of attorney document. For a power of attorney to be effective, the principal must be competent to give this authority. In other words, the principal must know and understand what types of decisions need to be made. If the principal is mentally competent, but physically unable to sign his name, any mark the principal makes with the full intention that others regard the mark as the principal's signature will be acceptable. If the power of attorney grants the power to sell, lease, or otherwise dispose of the principal's real estate, the principal should also have the power of attorney recorded with the Registry of Deeds.
The following are Pennsylvania statutes:
20 Pa.C.S.A. § 5601. General provisions
(a) General rule. — In addition to all
other powers that may be delegated to an agent, any or all of
the powers referred to in section 5602(a) (relating to form
of power of attorney) may lawfully be granted in writing to
an agent and, unless the power of attorney expressly
directs to the contrary, shall be construed in
accordance with the provisions of this chapter.
(b) Execution. — A power of attorney shall
be signed and dated by the principal by signature or mark, or
by another on behalf of and at the direction of the
principal. If the power of attorney is executed by mark
or by another individual, then it shall be witnessed by
two individuals, each of whom is 18 years of age or older.
A witness shall not be the individual who signed the
power of attorney on behalf of and at the direction of
(c) Notice. — All powers of attorney shall
include the following notice in capital letters at the
beginning of the power of attorney. The notice shall be
signed by the principal. In the absence of a signed notice,
upon a challenge to the authority of an agent to exercise a
power under the power of attorney, the agent shall have
the burden of demonstrating that the exercise of this
authority is proper.
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 properly
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 most 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 keep your funds separate from your
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.
(d) Acknowledgment executed by agent. — An
agent shall have no authority to act as agent under the power
of attorney unless the agent has first executed and affixed
to the power of attorney an acknowledgment in
substantially the following form:
I, ___________, have read the attached power of attorney
and am the person identified as the agent for the
principal. I hereby acknowledge that in the absence of a
specific provision to the contrary in the power of
attorney or in 20 Pa.C.S. when I act as agent:
I shall exercise the powers for the benefit of the
I shall keep the assets of the principal separate from my
I shall exercise reasonable caution and prudence.
I shall keep a full and accurate record of all actions,
receipts and disbursements on behalf of the principal.
(e) Fiduciary relationship. — An agent
acting under a power of attorney has a fiduciary relationship
with the principal In the absence of a specific provision to
the contrary in the power of attorney, the fiduciary
relationship includes the duty to:
(1) Exercise the powers for the benefit of the principal.
(2) Keep separate the assets of the principal from those
of an agent.
(3) Exercise reasonable caution and prudence.
(4) Keep a full and accurate record of all actions,
receipts and disbursements on behalf of the principal.
(e.1) Limitation on applicability in commercial
(1) Subsections (c), (d) and (e) do not apply to a power
or a power of attorney contained in an instrument used
in a commercial transaction which simply authorizes an
agency relationship. This paragraph includes the
(i) A power given to or for the benefit of a creditor in
connection with a loan or other credit transaction.
(ii) A power exclusively granted to facilitate transfer
of stock, bonds and other assets.
(iii) A power contained in the governing document for a
corporation, partnership or limited liability company or
other legal entity by which a director, partner or
member authorizes others to do other things on behalf of
(iv) A warrant of attorney conferring authority to
(v) A power given to a dealer as defined by the act of
December 22, 1983 (P.L. 306, No. 84), [fn1 known as
the Board of Vehicles Act, when using the power in
conjunction with a sale, purchase or transfer of a
vehicle as authorized by 75 Pa.C.S.A §1119 (relating to
application for certificate of title by agent).
(2) Powers and powers of attorney exempted by this
subsection need not be dated.
(e.2) Limitation on applicability in health care power
of attorney. — Subsections (c) and (d) do not
apply to a power of attorney which exclusively provides for
health care decision making.
(f) Definition. — As used in this chapter,
the term "agent" means a person designated by a principal in
a power of attorney to act on behalf of that principal.
[fn1] 63 P.S. §818.1 et seq.
20 Pa.C.S.A. § 5601.1. Powers of attorney presumed durable
Unless specifically provided otherwise in the power of attorney, all
powers of attorney shall be durable as provided in section 5604 (durable
powers of attorney).
20 Pa.C.S.A. § 5602. Form of power of attorney
(a) Specification of powers. — A principal may, by inclusion of
the language quoted in any of the following paragraphs or by inclusion of
other language showing a similar intent on the part of the principal,
empower an agent to do any or all of the following, each of which is
defined in section 5603 (relating to implementation of power of
(1) "To make limited gifts."
(2) "To create a trust for my benefit."
(3) "To make additions to an existing trust for my benefit."
(4) "To claim an elective share of the estate of my deceased spouse."
(5) "To disclaim any interest in property."
(6) "To renounce fiduciary positions."
(7) "To withdraw and receive the income or corpus of a trust."
(8) "To authorize my admission to a medical, nursing, residential or
similar facility and to enter into agreements for my care."
(9) "To authorize medical and surgical procedures."
(10) "To engage in real property transactions."
(11) "To engage in tangible personal property transactions."
(12) "To engage in stock, bond and other securities transactions."
(13) "To engage in commodity and option transactions."
(14) "To engage in banking and financial transactions."
(15) "To borrow money."
(16) "To enter safe deposit boxes."
(17) "To engage in insurance transactions."
(18) "To engage in retirement plan transactions."
(19) "To handle interests in estates and trusts."
(20) "To pursue claims and litigation."
(21) "To receive government benefits."
(22) "To pursue tax matters."
(23) "To make an anatomical gift of all or part of my body."
(b) Appointment of agent and successor agent. — A principal
may provide for:
(1) The appointment of more than one agent, who shall act jointly,
severally or in any other combination that the principal may designate,
but if there is no such designation, such agents shall only act jointly.
(1.1) The delegation of one or more powers by the agent to such person
or persons as the agent may designate and on terms as the power of
attorney may specify.
(2) The appointment of one or more successor agents who shall serve in
the order named in the power of attorney, unless the principal expressly
directs to the contrary.
(3) The delegation to an original or successor agent of the power to
appoint his successor or successors.
(c) Filing of power of attorney. — An executed copy of the power
of attorney may be filed with the clerk of the orphans' court division of
the court of common pleas in the county in which the principal resides,
and if it is acknowledged, it may be recorded in the office for the
recording of deeds of the county of the principal's residence and of each
county in which real property to be affected by an exercise of the power
is located. The clerk of the orphans' court division or any office for
the recording of deeds with whom the power has been filed, may, upon
request, issue certified copies of the power of attorney. Each such
certified copy shall have the same validity and the same force and effect
as if it were the original, and it may be filed of record in any other
office of this Commonwealth (including, without limitation, the clerk of
the orphans' court division or the office for the recording of deeds) as
if it were the original.
20 Pa.C.S.A. § 5611. Validity
A power of attorney executed in another state or jurisdiction and in
conformity with the laws of that state or jurisdiction shall be
considered valid in this Commonwealth, except to the extent that the
power of attorney executed in another state or jurisdiction would allow an
agent to make a decision inconsistent with the laws of this