How can I get power of attorney from my father who is becoming disabled?
Full Question:
Answer:
If you father is legally competent and not under any undue influence, he may execute a power of attorney giving authority to act on his behalf to any adult.
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 regarding execution of a power of attorney:
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
the principal.
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.
NOTICE
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
agent's funds.
A court can take away the powers of your agent if it
finds your agent is not acting properly.T
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.
___________________ __________________
(Principal) (Date)
(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
principal.
I shall keep the assets of the principal separate from my
assets.
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.
_______________________ _____________________
(Agent) (Date)
(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
transaction. —
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
following:
(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
the entity.
(iv) A warrant of attorney conferring authority to
confess judgment.
(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).
