pennsylvania what capacity needed to make power of attorney

What are the requirements for a power of attorney in Pennsylvania?

Sep 22, 2020 · A POA in Pennsylvania must be dated, signed by the principal, witnessed by two adults, and notarized. If the principal is not able to write, he or she may sign by making a mark (such as an "X") or by directing another person to sign on his or her behalf. If this is done, there must be two adult witnesses to the signature.

What is the threshold of capacity to grant a power of attorney?

At a recent seminar presented, in part, by Montgomery County Judge Ott, he outlined what he considered the standard to determine capacity for the principal who is executing a Pennsylvania Power of Attorney. The Principal must: 1. Understand the nature of the authority delegated to the Agent(s); and 2.

What is a power of attorney (POA)?

While Pennsylvania requires the person making a power of attorney to have the mental capacity to do so, neither the state's statutes or higher courts have defined exactly what kind of mental capacity is needed. However, some probate courts (called "orphans' courts" in Pennsylvania) have required that the person making a POA understand:

How many witnesses do you need for a power of attorney?

Mar 08, 2021 · The durable power of attorney (also referred to as a health care power of attorney) are often written by elderly people or those with terminal illness — but before it is needed, since the person to whom it applies must have capacity to grant this power. The term "durable" refers to its validity after you become incapacitated (non-durable ...

What does capacity mean in power of attorney?

In order to execute a durable power of attorney, a client has to have contractual capacity. Contractual capacity means that the person has the ability to understand the nature and effect of the act and the business being transacted.Dec 16, 2015

Who can be a power of attorney in Pennsylvania?

You may make a healthcare POA if you are at least 18 years of age or, if under 18, you have graduated from high school, are married, or are legally emancipated.

What are the requirements for power of attorney?

In order to make a power of attorney, you must be capable of making decisions for yourself. This is called having mental capacity – see under heading, When does someone lack mental capacity? You can only make a power of attorney which allows someone else to do things that you have a right to do yourself.

Do you need capacity for power of attorney?

A lasting power of attorney (LPA) is a legal document which allows individuals to give people they trust the authority to manage their affairs if they lack capacity to make certain decisions for themselves in the future. To set up an LPA a person must be 18 or over, and have the mental capacity to decide to do so.

What three decisions Cannot be made by a legal power of attorney?

You cannot give an attorney the power to: act in a way or make a decision that you cannot normally do yourself – for example, anything outside the law. consent to a deprivation of liberty being imposed on you, without a court order.

Can family members witness a power of attorney?

An attorney's signature must also be witnessed by someone aged 18 or older but can't be the donor. Attorney's can witness each other's signature, and your certificate provider can be a witness for the donor and attorneys.Aug 26, 2021

What documents do I need to prove power of attorney?

to make sure you have authority or permission to act on another's behalf....Name documents:passport.driving licence.biometric residence card.national identity card.travel document.birth or adoption certificate or certificate of registry of birth.

What is the difference between power of attorney and lasting power of attorney?

An ordinary power of attorney is only valid while you have the mental capacity to make your own decisions. If you want someone to be able to act on your behalf if there comes a time when you don't have the mental capacity to make your own decisions you should consider setting up a lasting power of attorney.Mar 7, 2022

Can two siblings have power of attorney?

Your parents' next of kin (a spouse, you, other siblings etc) cannot just take control of their finances or make health-related decisions. The only person who can do this legally is the nominated power of attorney.Jul 16, 2020

What are the 4 steps of establishing capacity?

The MCA says that a person is unable to make their own decision if they cannot do one or more of the following four things: Understand information given to them. Retain that information long enough to be able to make the decision. Weigh up the information available to make the decision.

How do you assess capacity for power of attorney?

You must check that a person has mental capacity to make a decision at the time it needs to be made. They can make the decision if they can: understand the information they need - for example, what the consequences will be. remember the information for long enough to make the decision.

Who assesses capacity for LPA?

If a person lacks capacity to authorise an LPA, the Court of Protection form when someone lacks capacity is the COP3 capacity assessment form. When a power of attorney cannot be appointed as the Donor lacks capacity, a deputy needs to be appointed to take on the role.

Standards Determining Capacity for PA Power of Attorneys

Estate Planning and Elder Law practitioners in Pennsylvania routinely recommend to clients that they execute a Durable General Power of Attorney naming an agent to be empowered to act on their behalf as an essential estate planning instrument.

John Trainer

John’s concentrates his legal practice in estate planning, estate administration and elder law for individual and corporate clients in Bucks and adjacent counties. His practice areas include Estate Planning, Estate Administration and Elder Law.

What Types of Power of Attorneys Are Available in Pennsylvania?

You can make several different types of POAs in Pennsylvania. In particular, many estate plans include two POAs:

What Are the Legal Requirements of a Financial POA in Pennsylvania?

For your POA to be valid in Pennsylvania, it must meet certain requirements.

Steps for Making a Financial Power of Attorney in Pennsylvania

Some private companies offer forms or templates with blanks that you can fill out to create your POA. For a more user-friendly experience, try WillMaker, which guides you through a series of questions to arrive at a POA (and estate plan) that meets your specific aims and is valid in your state.

Who Can Be Named an Agent in Pennsylvania?

Legally speaking, you can name any competent adult to serve as your agent. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing agents, see What Is a Power of Attorney.

When Does My Durable Financial POA Take Effect?

Your POA is effective immediately unless it explicitly states that it takes effect at a future date.

When Does My Financial Power of Attorney End?

Any power of attorney automatically ends at your death. It also ends if:

What does a power of attorney for property mean?

For instance, if the incapable person executed a power of attorney for property or for personal care while they were capable, that document will allow the person named in it to make decisions on behalf of the incapable person. As the name suggests, a power of attorney for property allows for the attorney to make decisions about ...

What is the difference between a power of attorney and a power of attorney for personal care?

As the name suggests, a power of attorney for property allows for the attorney to make decisions about the grantor’s property, while a power of attorney for personal care allows the attorney to make personal care decisions on behalf of the grantor including decisions about health care, hygiene, nutrition, shelter and safety.

What does "appreciate" mean in a property appraisal?

Appreciates that the value of the property may decline unless the attorney manages the property prudently; Appreciates the possibility that the attorney could misuse their authority. 6.

What are the decisions about property?

Decisions about property include decisions relating to day to day management of finances, banking, investing and the treatment of personal property and land. Decisions about personal care include decisions about where to live, what to eat, what clothing to wear, hygiene, safety and health. There is a presumption of capacity for individuals who are ...

What is the legal test for capacity?

The legal test for capacity varies based on the type of decision that the person is making. Generally, any decision will fit into one of two categories – decisions about personal care, and decisions about property. Decisions about property include decisions relating to day to day management of finances, banking, ...

What does "knows" mean in a power of attorney?

Knows that the attorney will be able to do on their behalf anything in respect of property that they could do if capable, except make a will, subject to any conditions and restrictions set out in the power of attorney; Knows that the attorney must account for his or her dealings with the property; Knows that they may, if capable, revoke ...

When more than one person is named as an attorney, should the document set out?

When more than one person is named as an attorney, the document should set out whether they are required to make decisions together (jointly) or whether each can make decisions on their own (jointly and severally). If this is not indicated in the document, the presumption is that the attorneys are meant to act jointly. 5. ...

What is a durable powers of attorney?

Agents acting under durable powers of attorney are in a position to abuse their powers. Vulnerable elderly principals can be taken advantage of by the very persons they appointed to this position of trust.

What is litigaiton aimed at?

More and more agents are being asked to account for their actions and more and more litigaiton is aimed at agents who abuse their powers, especially by making gifts to themseles. Learn how to do it right and stay out of trouble.

What is the role of criminal justice agents?

According to the American Bar Association Commission on Law and Aging, too many criminal justice professionals lack awareness in the role they can play in holding offenders accountable. An agent who violates the duty owed to the principal may have committee one or more crimes. The agent may have violated state and federal laws, including laws …

Is a power of attorney immune from liability?

The Pennsylvania Supreme Court has issued a decision holding that a third party that relies on a power of attorney is not immune from liability if the power of attorney is not valid. This decision calls into question third parties’ acceptance of powers of attorney.

What is considered incapacitated in Pennsylvania?

A person is considered incapacitated when they cannot make sound decisions regarding their physical health or financial matters or both. According to the Pennsylvania Bar Association, an individual may be incapacitated if they possess a “progressive mental illness” like Alzheimer’s or dementia.

What is a POA?

A power of attorney (POA) is a legal document that names an individual (agent) to act on behalf of the person who executed the document, also known as the “principal.”. There are two types of POAs: general POA and limited POA. General POA gives an agent wide discretion over the affairs of the principal. A limited POA gives the agent the power ...

What are the requirements for guardianship?

If the guardianship is approved, the guardian who is chosen must be willing to serve as the incapacitated person’s guardian. There are a few categories of possible guardians for an incapacitated person: 1 Any qualified individual 2 Corporate fiduciary 3 Nonprofit corporation 4 Guardianship support agency 5 County agency

What is limited POA?

A limited POA gives the agent the power to handle specific tasks, like handling medical treatments for the principal. A guardian can also be authorized to act on behalf of an incapacitated person. However, the court will grant the guardian those powers because the incapacitated person is incapable of doing so.

What is the requirement for an alleged incapacitated person to receive written notice of the petition?

The alleged incapacitated person must receive written notice of the petition and of their right to retain or be appointed counsel . To be judged incapacitated, there must be “clear and convincing evidence” that shows the individual needs a guardian to handle their affairs.

What is the purpose of guardianship?

The purpose of a guardianship is to appoint an individual to care for a person who cannot care for themselves. Additionally, if for some reason the principal had created a POA that was not durable, the agent’s powers will terminate once the principal becomes incapacitated.

Can a guardian be a guardian in Pennsylvania?

Pennsylvania will not approve a guardianship if an individual only suffers from occasional moments of confusion. If the guardianship is approved, the guardian who is chosen must be willing to serve as the incapacitated person’s guardian. There are a few categories of possible guardians for an incapacitated person:

What is the standard for writing a durable power of attorney?

In order to write a Durable Power of Attorney, the person must have “contractual capacity.”. This is a different standard than testamentary capacity in that testamentary capacity can be fleeting. In order to establish contractual capacity, one must demonstrate more than a “transient surge of lucidity. It involves not merely comprehension of ...

What is a durable power of attorney?

A Durable Power of Attorney allows the Attorney-in-Fact to continue managing your financial affairs even if you are no longer mentally competent. A Durable Power of Attorney must unequivocally state that it remains in effect even after the onset of a mental decline or disability. However, you must have “contractual capacity” to execute ...

Why is a durable power of attorney important?

A Durable Power of Attorney can be a very effective alternative to guardianship and conservatorship because someone has already been nominated to handle any financial transactions. Something worth noting is that like a Will, capacity at the time of signing Durable Power of Attorney is essential.

Who has no legal authority to execute a power of attorney?

A person executing a durable general power of attorney naming a husband, wife, child, or other family member as attorney-in-fact authorizes that family member to manage his or her financial and personal affairs even after incapacity, avoiding the need for any guardianship. Spouse Has No Legal Authority.

What to do if you don't have a power of attorney?

If you don’t have a power of attorney, the only other alternative is a court appointed guardian. Guardianship. The court procedure is termed a “guardianship” in Pennsylvania, In some other states, the procedure is referred to as a “conservatorship.”. The individual for whom a guardian has been appointed is called a “ward.”.

How to prove a substitute decision maker?

If an individual lacks the mental capacity necessary to make rational choices, there are two ways recognized by the law for proving a substitute decision maker: (1) the individual, while he was still competent, designated someone to be their agent, also known as an attorney-in-fact, by signing a power of attorney, or (2) the state, acting through the courts , may appoint a substitute decision maker known as a guardian (also sometimes called a “conservator”), for the incapacitated individual.

What are the standards of competency?

The law provides a different standard of competency for 1) making contracts, 2) making wills, 3) having a guardian appointed, 4) and giving informed consent to medical treatment.

What does the law say about making rational decisions?

Note we say they are “capable” of making rational decisions. The law doesn’t expect or require that they actually make rational decisions. Competent individuals of all ages, old and young, have the right to make foolish, eccentric or idiosyncratic decisions. For better or worse, all of us are free to make bad decisions.

What happens if a person has a guardian?

If a person has a legal guardian and a court has made a determination that he or she is incapacitated, that person completely lacks the capacity to contract. Any contract signed by a person who has a legally appointed guardian is void.

What is the legal ability to contract?

In order to be bound by a contract, a person must have the legal ability to form a contract in the first place. This legal ability is called the capacity to contract. A person who is unable, due to age or mental impairment, to understand what she is doing when she signs a contract may lack capacity to contract.