What Is a Power of Attorney?
A power of attorney is a legal document. It allows a person (the principal) to give another person (the agent) the legal authority to make decisions and take actions on the principal's behalf.
Despite its name, it does not give someone the power to practice law or act as your lawyer. Instead, it allows someone to act as if they were you and to legally bind you to the decisions and actions they make on your behalf.
There are many types of powers of attorney in Pennsylvania. The two main types are the financial power of attorney and the health care power of attorney. A financial power of attorney is a power of attorney that allows an agent to make decisions relating to the principal's finances, property, and personal care.
However, a person cannot use a financial power of attorney for health care decisions. To make health care decisions, an agent will need a health care power of attorney.
What Is a Health Care Power of Attorney?
Under a health care power of attorney, the principal names an agent to make health care decisions for the principal. It is one of two advance health care directives in Pennsylvania. The other one is called a living will.
A living will is a document that gives a person's directions for health care when they have a terminal medical condition or are permanently unconscious. In Pennsylvania, a living will and a health care power of attorney can be separate documents or combined in the same document.
Unless your health care power attorney says otherwise, it will become effective when a copy is given to your attending physician, and they determine you are incompetent. It will no longer be in effect when you regain competence.
If you are competent, you may overrule your health care agent's medical decisions by telling your attending physician or health care provider. Even if you are incompetent, you can overrule your health care agent's decision to withdraw or withhold life-sustaining treatment by telling your attending physician. Your decision to overrule your agent's decision will not affect their ability to make other health care decisions for you.
If you do not have a health care agent or a guardian appointed by a court, Pennsylvania law has a safeguard in place called a health care representative. The health care representative can make health care decisions for you as if they were your agent. If you are competent, you can tell your attending physician who your health care representative is.
If you are not competent, the following people can serve as your health care representative. The list is in order of priority:
- Your spouse, unless an action for divorce is pending
- Your adult child
- Your parent
- Your adult sibling
- Your adult grandchild
- An adult friend or family member who knows your values and beliefs
You can create a signed writing with a different order of priority or include it in your health care power of attorney. You also can list people whom you do not wish to serve as your health care representative in your health care power of attorney.
Even though the health care representative is a good fallback, it is not perfect. If several members of the same class are available, the majority must agree before making a health care decision. For example, if you have no spouse and two children, both children must agree, or a physician cannot act. To avoid conflicts between health care representatives, you should have a health care power of attorney.
How To Get a Pennsylvania Power of Attorney
You can hire an attorney to create your power of attorney or make one yourself using a form. You will need separate forms for your financial power of attorney and your health care power of attorney.
Before you fill out a form, you should review these steps and follow them as you make your power of attorney:
Decide how much authority to give your agent
Ask yourself why you want a power of attorney. Do you want it to allow someone to take care of your finances and health when you cannot? Do you need someone to manage property or handle a transaction for you now?
Financial powers of attorney can be limited or broad, and you can have more than one. You could have a broad power of attorney for when you are incapacitated and another one for a limited purpose.
However, you can have only one health care power of attorney. You can limit your agent's authority, but it is usually a good idea to give them broad powers in case an unexpected health condition arises.
End-of-life decisions are one area where it is helpful to limit an agent's authority. You can describe your wishes in your health care power of attorney, your living will, or an advance directive that includes both. If you indicate what kind of life support you want when you have a terminal condition, you can save your agent from making the difficult choice between stopping or extending life support.
Select agents you trust
The most important thing when choosing an agent is to pick someone you trust. Your agent for a financial power of attorney will have the power to use your property or money and legally bind you with their actions. A health care agent will be making life-or-death decisions on your behalf.
An agent for a financial power of attorney should be responsible with money. They should be comfortable dealing with banks and financial and legal professionals.
A health care agent should know you well and understand what kind of medical care you want. Before naming a health care agent, you should talk to them about the care and quality of life you want and any moral, ethical, or religious beliefs you have about your medical care.
Unless they are related to you by blood, marriage, or adoption, your health care agent cannot be:
- Your attending physician or health care provider
- An owner, operator, or employee of a health care provider where you are receiving care
For both financial and health care powers of attorney, you can appoint more than one agent to act as co-agents. Your co-agents must act together unless your power of attorney says they can act separately. In most situations, it is better to have one agent to avoid delay or confusion.
Finally, you should name one or more successor agents in case your original agent is unavailable or unable to serve.
Use a good form power of attorney
Unlike many states, Pennsylvania does not have a financial power of attorney form in its statutes. However, all financial powers of attorney must include the notice language from Pennsylvania Consolidated Statutes Section 5601, and the principal must sign the notice. Pennsylvania does have a sample form for an advance directive in Pennsylvania Consolidated Statutes Section 5471 that includes a health care power of attorney and living will.
We offer easy-to-use financial and health care power of attorney forms that you can tailor to your specific needs.
Sign your power of attorney with the correct number of witnesses
You must sign your power of attorney for it to be valid. Financial powers of attorney and health care powers of attorney have different witness requirements.
Financial power of attorney
You must sign and date your financial power of attorney. If you are physically unable to sign, you can make a mark or direct another person to sign on your behalf.
You will also need two witnesses and must acknowledge your signature, your mark, or the signature made on your behalf before a notary public. The notary public cannot be one of the two witnesses or your agent designated in your power of attorney. A witness cannot be your agent or the person who signs on your behalf if you cannot sign.
In Pennsylvania, your agent must sign an acknowledgment of the power of attorney before they can act on your behalf.
Health care power of attorney
You must sign and date your health care power of attorney in the presence of two adult witnesses. You do not need a notary public for a health care power of attorney in Pennsylvania.
If you are unable to sign, you can execute your health care power of attorney with a mark or by having someone else sign it on your behalf at your direction. The person who signs on your behalf cannot be a health care provider who provides for your care, and the person who signs for you cannot be one of your two witnesses.
Deliver the power of attorney to people who need it
You should give a copy of your financial power of attorney to your agent and to any businesses or banks you want your agent to conduct business with.
Your primary physician, health care agent, and any health facilities where you receive treatment should have copies of your health care power of attorney.
Note: State laws are always subject to change through new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.
