§ 5604 — Durable powers of attorney

Pennsylvania § 5604

• Jurisdiction: Pennsylvania
• Title 20: DECEDENTS, ESTATES AND FIDUCIARIES
• Ch. 56: POWERS OF ATTORNEY

Text

(a) Definition.--A durable power of attorney is a power of attorney by which a principal designates another his agent in writing. The authority conferred shall be exercisable notwithstanding the principal's subsequent disability or incapacity. A principal may provide in the power of attorney that the power shall become effective at a specified future time or upon the occurrence of a specified contingency, including the disability or incapacity of the principal.

(b) Durable power of attorney not affected by disability or lapse of time.--All acts done by an agent pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his successors in interest as if the principal were competent and not disabled. Unless the power of attorney states a time of termination, it is valid notwithstanding the lapse of time since its execution.

(c) Relation of agent to court-appointed guardian.--

(1) If, following execution of a durable power of attorney, the principal becomes an incapacitated person and a guardian is appointed for his estate, the agent is accountable to the guardian as well as to the principal.

(2) A principal may nominate, by a durable power of attorney, the guardian of his estate or of his person for consideration by the court if incapacity proceedings for the principal's estate or person are thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification.

(3) In its guardianship order and determination of a person's incapacity, the court shall determine whether and the extent to which the incapacitated person's durable power of attorney remains in effect.

(d) Discovery of information and records regarding actions of agent.--

(1) If the agency acting pursuant to the act of November 6, 1987 (P.L.381, No.79), known as the Older Adults Protective Services Act, is denied access to records necessary for the completion of a proper investigation of a report or a client assessment and service plan or the delivery of needed services in order to prevent further abuse, neglect, exploitation or abandonment of the older adult principal reported to be in need of protective services, the agency may petition the court of common pleas for an order requiring the appropriate access when either of the following conditions applies:

(i) the older adult principal has provided written consent for confidential records to be disclosed and the agent denies access; or

(ii) the agency can demonstrate that the older adult principal has denied or directed the agent to deny access to the records because of incompetence, coercion, extortion or justifiable fear of future abuse, neglect, exploitation or abandonment.

(2) This petition may be filed in the county wherein the agent resides or has his principal place of business or, if a nonresident, in the county wherein the older adult principal resides. The court, after reasonable notice to the agent and to the older adult principal, may conduct a hearing on the petition.

(3) Upon the failure of the agent to provide the requested information, the court may make and enforce such further orders.

(4) A determination to grant or deny an order, whether in whole or in part, shall not be considered a finding regarding the competence, capacity or impairment of the older adult principal, nor shall the granting or denial of an order preclude the availability of other remedies involving protection of the person or estate of the older adult principal or the rights and duties of the agent.

(e) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

"Abandonment."As that term is defined in the act of November 6, 1987 (P.L.381, No.79), known as the Older Adults Protective Services Act.

"Abuse."As that term is defined in the act of November 6, 1987 (P.L.381, No.79), known as the Older Adults Protective Services Act.

"Agency."As that term is defined in the act of November 6, 1987 (P.L.381, No.79), known as the Older Adults Protective Services Act, except that in cities of the first class the term shall mean the Department of Aging.

"Exploitation."As that term is defined in the act of November 6, 1987 (P.L.381, No.79), known as the Older Adults Protective Services Act.

"Neglect."As that term is defined in the act of November 6, 1987 (P.L.381, No.79), known as the Older Adults Protective Services Act.

"Older adult principal."A principal who is 60 years of age or older.

Legislative History

(Apr. 16, 1992, P.L.108, No.24, eff. 60 days; Dec. 16, 1992, P.L.1163, No.152, eff. imd.; Oct. 12, 1999, P.L.422, No.39, eff. 60 days; Dec. 20, 2000, P.L.978, No.137, eff. imd.; July 8, 2016, P.L.497, No.79, eff. Jan. 1, 2017; Oct. 4, 2016, P.L.867, No.103, eff. imd.) 2016 Amendments.Act 79 amended subsec. (c)(1) and added subsec. (c)(3) and Act 103 amended subsec. (c)(1), retroactive to January 1, 2015. The amendments of subsec. (c)(1) by Acts 79 and 103 do not conflict in substance and, under the provisions of 1 Pa.C.S. § 1954, have been merged in setting forth the text of subsec. (c)(1). See section 21 of Act 79 in the appendix to this title for special provisions relating to applicability. 2000 Amendment.Act 137 added subsecs. (d) and (e). 1999 Amendment.See section 13(8) of Act 39 in the appendix to this title for special provisions relating to applicability. 1992 Amendments.See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability. See section 27(b) of Act 152 in the appendix to this title for special provisions relating to applicability of other provisions. Cross References.Section 5604 is referred to in sections 2206, 5601.1, 6202 of this title.