PA Bar Assn approves Orphans' Court Mediation Project

On Friday, November 21, 2014, the Pennsylvania Bar Association formally approved, by unanimous vote, a Report and Recommendation presented by its Alternative Dispute Resolution Committee regarding a proposal for mediation in the Orphans' Court Divisions, of the Courts of Common Pleas, in the Commonwealth.  

The "OC Mediation Project" proposes a "Model Local Rule" offered for consideration in the future by judicial districts in Pennsylvania favoring implementation of mediation in that Division for court-filed or court-annexed matters.

The proposal was endorsed by the Real Property, Probate & Trust Law Section and the Elder Law Section of the PBA.  

As a co-chair of the Subcommittee, a member of the ADR Committee, and a member of both those Sections, I presented the proposal first to the PBA Board of Governors on Wednesday, November 19, 2014 (which suggested amendments and then approved it 25-0) and then to the PBA House of Delegates on Friday, November 21st (which approved the amended proposal unanimously).

Participants on the Subcommittee who prepared the OC Mediation Project included Co-Chairs Bernice J. Koplin, Neil E. Hendershot, and Hon. Jay J. Hoberg; and Members Ann Lee Begler (Liaison to PBA Elder Law Section), David A. Fitzsimmons, John Francis Gough, Frederick K. Hatt, Timothy J. Holman, Hon. Richard B.  Klein, Vincent B. Lackner, Robert H. Lefevre, M. Melvin Shralow, Stanley A. Pelli, James A. Rosenstein (Chair of PBA ADR Committee), Ross F. Schmucki (Liaison to Philadelphia Guardianship Task Force), P. Douglas Sisk, Eric R. Strauss (Liaison to PBA RPPT Section), and Gordon M. Wase.

Following is the Report without the referenced attachments. The full report can be obtained from the PBA in the short term, prior to posting of the full Report on the PBA website in the future.

Recommendation

The PBA Alternative Dispute Resolution Committee recommends the Pennsylvania Bar Association to approve the Orphans’ Court Mediation Project as described in this report which includes but is not limited to the Model Local Orphans’ Court Rule 1.6 that is outlined in Attachment 5, on pages 18-19 of this Report.

Report

Members[1] of the Orphans’ Court Mediation Subcommittee (the “Subcommittee”), of the Alternative Dispute Resolution Committee, of the Pennsylvania Bar Association, examined how other states and some counties within Pennsylvania have expanded mediation into their probate-related divisions and have become mediation-friendly in the Orphans’ Court Division of the court.

Members of the Subcommittee are Pennsylvania attorneys, either trained or active as mediators, or involved in past mediations in representation of participants.  Some are licensed as mediators in additional jurisdictions, serve as mediators for various agencies and organizations (e.g. FINRA), or participated in programs of the Pennsylvania Superior Court and federal courts. 

The Subcommittee’s objective is to develop a Model Local Rule for Mediation in the Orphans’ Court Division (the “OC Mediation Project” or the “Project”), with accompanying forms and explanations that will be “not inconsistent” with the anticipated form of a new Supreme Court Orphans’ Court Rule 1.6.  The Model Local Rule would be made available for consideration by judicial districts in Pennsylvania for litigation filed in the Orphans’ Court Division or in certain court-annexed matters, where the Orphans’ Court Division has both in personam jurisdiction and subject matter jurisdiction if litigation would be commenced in the matter.

The present OC Mediation Project is limited to court-filed or court-annexed mediation.  However, statewide Supreme Court O.C. Rule 1.6 is anticipated to be broader.  Following a successful deployment of this phase of the OC Mediation Project, the Subcommittee expects to work on an expansion of mediation in this subject matter area to address private mediation or mediation which is not court-annexed.

The OC Mediation Project was described in two bar association newsletter articles.[2]

This presentation is intended for the Pennsylvania Bar Association governance.  It is proposed by the PBA’s Alternative Dispute Resolution Committee[3], and is supported by the PBA Real, Property & Trust Law Section[4], and by the PBA Elder Law Section.[5] 

Attachments 

Attached are the following materials, which explain or constitute the present status of the OC Mediation Project:

1. Article: A Model Local Orphans’ Court Rule for Mediation, by Bernice J. Koplin and Neil E. Hendershot, dated May 22, 2014, as published in two newsletters.  (Page 6)
2. Resources and References: Comparable Fiduciary Court Mediation Programs  (Page 8)
3. Comparison: Previously Published, versus Anticipated Revised, New Statewide O.C. Rule 1.6  (Page 13)
4. Brochure: Pennsylvania Orphans’ Court-Annexed Mediation Program  (Page 14)
5. Proposed Model Local Rule: Model Local Orphans’ Court Rule 1.6  (Page 18)
6. Form: Agreement to Mediate on a Confidential Basis  (Page 20)
7. Form: Notice of Initiation of Mediation  (Page 22)
8. Form: Notice of Completion of Mediation  (Page 23)
9. Form: Praecipe  (Page 24)
10. Statement:  Orphans’ Court Mediators and Their Qualifications  (Page 25)

 The Subcommittee may revise or expand generic forms for use in the OC Mediation Project, such as an application for a person to serve as a mediator.  The OC Mediation Project contemplates

periodic revision of these documents as various judicial districts or local bar associations gain experience with mediation in Orphans’ Court Division matters and provide feedback.

PBA Project Approval, Deployment, and Continuing Refinement

If approved by PBA governance and with continued monitoring by the ADR Committee, the Elder Law Section, and the Real Property, Probate & Trust Law Section, the OC Mediation Project will be ongoing.  If successful in its court-annexed approach, perhaps it can be expanded.  Perhaps this model for mediation could be expanded into other areas of substantive law not already addressed by mediation.

Who will promote, and then monitor and update, the Project on behalf of PBA? 

• The Subcommittee will promote the Project to local bar associations and provide information to the judicial districts in Pennsylvania on behalf of the PBA.
• The Subcommittee will monitor and update the OC Mediation Project with feedback received.
• The Subcommittee is accountable to the PBA ADR Committee.  The Subcommittee expects designated members to act as a liaison with the RPPT Section and the Elder Law Section, as active supporters of the Project.

Will additional resources be deployed?

• The Subcommittee recommends that the brochure, the forms, and reliable links regarding mediation be posted on a webpage of the PBA’s website, to be substantively supervised by the Subcommittee with maintenance by PBA Staff.
• The current PBA brochure on arbitration and mediation should be updated to include reference to the OC Mediation Project.
• The PBA may, through its ADR Committee, make available a database of trained mediators with significant Orphans' Court Division experience.  However, approval of this Presentation does not mandate creation or maintenance of a particular form of list. Local bar associations may also undertake to maintain such lists of mediators.
• The PBA will create disclaimers that there will be no liability, express, implied, or otherwise, regarding the Program, including actions or omissions of a mediator.
• Participants in a mediation shall agree to that condition in the written Agreement to Mediate.

What will the Project cost, and who will bear the costs?

• Costs of a webpage could come from the PBA’s operation budget with existing staff
• A source of ongoing funding could be, but is not committed to be: 1) the PBA general fund, 2) funds of the ADR Committee and/or the two supporting Sections, or 3) foundation or grant funds.  It is not anticipated presently that funds of the Unified Judicial System will be applied to the OC Mediation Project.
• The costs of individual mediation will be borne by the parties in interest, not the PBA, nor the Unified Judicial System.

Will this pro bono Project expand into a standalone operation?

• This is a targeted, limited authorization for mediation in Orphans’ Court Division matters and potentially related private matters not presented to an Orphans’ Court Division but within its subject matter jurisdiction.  If, over a period of years this Project is maintained and proves successful, it may become integrated into Pennsylvania’s Unified Judicial System in some way presently unforeseen, or it may become a self-supporting non-profit activity. 
• The present Project will produce a complete product outlining a mediation process, which then can be adopted through local rule under anticipated statewide OC Rule 1.6, or even in a case by case determination by special order. A local bar association may be involved, or a judicial district may adopt a local rule.
• In its present form, the Project would be maintained as a pro bono activity of PBA members to the extent of their available time and the PBA’s resources.  It is a model, not a mandate in any manner.  The Project is conditional in deployment upon approval by the PA Supreme Court of a new statewide Orphans’ Court Rule 1.6 substantially in the anticipated form, which would specifically authorize mediation in an Orphans’ Court Division of a local judicial district to occur after a specified effective date.
• There is no plan to expand the Project beyond this status, unless demand occurs and circumstances permit, and with the approval of the sponsors and PBA governance.
• The PBA is not committed to provide any funding.

What is sought from PBA governance? 

• The ADR Committee, with the support of the Real Property, Probate & Trust Law Section and the Elder Law Section, request approval of the OC Mediation Project.  
• Approval would allow public dissemination of the present form of a Model Local Rule for Orphans’ Court Division mediation and the proposed forms. 
• Approval would also authorize dissemination of information regarding the OC Mediation Project on the PBA’s website, with adequate disclaimers to the public.
• If PBA desires to monitor the Project over a period of time, and request subsequent review, for example, two years after its inception (which will depend upon the issuance of a new statewide Orphans’ Court Rule 1.6), the Subcommittee would accept that. 
• When the Project would be reviewed, it could be terminated, maintained as then in effect, or expanded, depending upon its reception statewide and upon the reactions of local courts, the Administrative Office of Pennsylvania Courts, and other organizations, such as bar associations, mediation providers, and even healthcare industry groups with members involved in resolution of end-of-life health care disputes, where subject matter jurisdiction resides in the Orphans’ Court Division.[6]

Respectfully Submitted,

James Rosenstein, Chair, PBA Alternative Dispute Resolution Committee

Submitted on October 14, 2014; Amended on November 19, 2014.

Approved, as amended, by the Pennsylvania Bar Association’s Board of Governors on November 19, 2014 (25-0), and by the PBA’s House of Delegates on November 21, 2014 unanimously.

---

[1]   Participants on the Subcommittee include Co-Chairs Bernice J. Koplin, Neil E. Hendershot, and Hon. Jay J. Hoberg; and Members: Ann Lee Begler (Liaison to PBA Elder Law Section), David A. Fitzsimmons, John Francis Gough, Frederick K. Hatt, Timothy J. Holman, Hon. Richard B.  Klein, Vincent B. Lackner, Robert H. Lefevre, M. Melvin Shralow, Stanley A. Pelli, James A. Rosenstein (Chair of PBA ADR Committee), Ross F. Schmucki (Liaison to Philadelphia Guardianship Task Force), P. Douglas Sisk, Eric R. Strauss (Liaison to PBA RPPT Section), and Gordon M. Wase.

[2]   This article was published in the Newsletter of the Probate and Trust Law Section, Philadelphia Bar Association, in Issue No. 134 (May, 2014) at pp. 21-22 ( Link: http://goo.gl/h09sUA),, and in the Newsletter of the Real Property, Probate and Trust Law Section of the Pennsylvania Bar Association, in Issue No. 75 (Summer, 2014) at pp. 18 (Link: http://goo.gl/JIL9Wl -- available for limited time publicly, then archived into Section’s Member area).

[3] The PBA ADR Committee voted conditional approval of the OC Mediation Project during its leadership conference call on September 30, 2014, and final approval of this presentations packet subsequently.

[4]   The PBA Real Property, Probate & Trust Law Section voted approval of the OC Mediation Project during its Council Conference Call on September 19, 2014, and final approval of this presentation packet subsequently. 

[5]   The PBA Elder Law Section voted tentative support of the OC Mediation Project during its leadership conference call on September 5, 2014, and final approval of this presentation packet subsequently.

[6]  The PBA might address mediation of health care representative disputes that remain under the subject matter jurisdiction of the Orphans’ Court Division under Chapter 54 of the Probate, Estates & Fiduciary Code.  Bioethical mediation can be effective in difficult end-of-life situations or in surrogate healthcare decision making.  See: Waldman, Ellen, Bioethics Mediation at the End of Life: Opportunities and Limitations, Cardozzo Journal of Conflict Resolution, Vol. 15, pp. 449-471 (Feb. 14, 2014), found online at: http://cardozojcr.com/wp-content/uploads/2014/02/Waldman.pdf. For a model health care mediation program in Pittsburgh, see: Brochure, UMPC Intermediation Program, found online at: http://goo.gl/m2idu1.

Philadelphia Court Upholds Stephen Girard's Intentions

Stephen Girard, late in life

Painted by J.R. Lambdin

Judge O'Keefe, Administrative Judge of the Philadelphia Court of Common Pleas, sitting in the Orphans' Court Division, issued an opinion and order, dated August 21, 2014 (filed and released on August 25, 2014), regarding the administration of Girard College.

The Court denied a petition filed in June, 2013, by the Board of Directors of City Trusts, for proposed temporary modifications of the Last Will of Stephen Girard in the Estate's operations of the 1-12 grade boarding school.

The changes would have altered its residential nature, and cut its grades from 12th down to 8th, with no graduation. Fiscal reasons were cited as the necessity for such actions.

These proposed changes required deviation from the stated intentions of Stephen Girard, characterized as the "Father of Philanthropy" in a 1997 article in The Wall Street Journal.

The case is important for both its procedural aspects and for its substantive ruling.

A copy of the Opinion Sur Decree and the Court's Decree are posted informally here (PDF, 20 pages).

The Philadelphia Inquirer posted an article about the ruling, entitled Judge: Girard must remain a boarding school, keep high school programs, by Martha Woodall (08/26/14).

I and our law firm (Serratelli, Schiffman & Brown, P.C., in Harrisburg, PA), including Carol Verish, Esq., served as counsel for the Girard College Alumni Association​, and for the representative students and parents, throughout the proceedings in their opposition. Local counsel in Philadelphia was Gerard M. McCabe, Esq., of Mitts Law.

The Alumni, students, and parents are gratified by the ruling.

This decision, like any other ruling by a court of common pleas in Pennsylvania, is subject to rights of appeal.

Update: 2014-08-28:

• The Philadelphia Inquirer published an editorial on August 28, 2014, entitled Girard's School Spirit, which contemplated the future of the College and its administration, in view of Judge O'Keefe's findings and ruling. 

• Professor Katherine M. Pearson, of Penn State Law / Dickinson School of Law, contributed a brief overview and analysis of this decision on the Elder Law Prof Blog, which she co-authors.  She identifies this ruling as a "classic" decision, likely to be studied by law students. See: The Latest Ruling on "The Most Litigated Will In History" (08/28/14).

PA POA Reform legislation on Governor's Desk

On June 18, 2014, the Pennsylvania House of Representatives adopted (193-0) the amended, compromise version of House Bill 1429, in Printer's No. 3708, regarding power of attorney reform.  The adopted legislation was transmitted to the Governor for signing into law on June 24, 2014. [Update: The Governor signed the legislation into law on July 2, 2014, as Act No. 95 of 2014.  See Update below.]

[Corrections on 06/23 & 24/14: Before going to the Governor, the  legislation required signature in the Senate also, as a formality.  That occurred on Monday June 23, 2014.  Thereafter, the legislation was sent to the Governor on June 24th for consideration and, with his agreement, signature into law.]

This is the formal summary of the legislation:

An Act amending Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes, in powers of attorney, further providing for general provisions and for special rules for gifts; providing for agent's duties and for principles of law and equity; further providing for form of power of attorney, for implementation of power of attorney and for liability; providing for liability for refusal to accept power of attorney and for activities through employees; and further providing for validity.

For background, see: PA EE&F Law Blog posting, PA Power of Attorney Reform Legislation Moves (06/17/14).

The legislation was debated for more than a year between the Pennsylvania House and Senate, and among various interest groups, including the Pennsylvania Bar Association, the Pennsylvania Banker's Association, and the Pennsylvania Chapter of the National Association of Elder Law Attorneys, upon proposals offered in two study reports issued by the Joint State Government Commission's Advisory Committee on Decedents Estate Laws.

With compromise and agreement attained by the advocacy groups, as evidenced by the mutual legislative adoptions in the past few days, I assume that the legislation will be signed into law by Governor Corbett.  A House sponsor of HB 1429 also seems positive about the legislation becoming law soon.  See: Keller’s Bill to Amend Power of Attorney Act Heads to Governor’s Desk (06/18/14).

Since his days as Pennsylvania' Attorney General, Tom Corbett has supported measures to curb and prosecute financial elder abuse.  This legislation contributes significantly towards that end.  Though not a gambler, I would bet this legislation will be signed by him, soon, to become law.

If so, the effective date for many provisions involving drafting of a document would be January 1, 2015.  

However, other provisions generally regarding effectiveness, presentment, recognition, or enforcement of a power of attorney document would be effective immediately:  "The amendment or addition of 20 Pa.C.S. §§ 5601(f) , 5608, 5608.1, 5608.2, 5611 and 5612 shall take effect immediately."

Those provisions to become effective immediately include:

• § 5601(f)  Definitions. -- The following words and phrases when used in this chapter shall have the meanings given to them in this subsection unless the context clearly indicates otherwise: 

  "Agent." A person designated by a principal in a power of attorney to act on behalf of that principal.

  "Good faith." Honesty in fact.

• § 5608  Acceptance of and reliance upon power of attorney.

• § 5608.1  Liability for refusal to accept power of attorney.

• § 5608.2. Activities through employees.

• § 5611. Validity.

• § 5612. Principles of law and equity.

Update: 07/07/14:

The Legislature's online bill information service posted an update on Monday, July 7, 2014, indicating that Governor Corbett signed the legislation into law, as Act No. 95 of 2014.

PA Power of Attorney Reform Legislation Moves

Legislative changes appear afoot regarding Pennsylvania's Power of Attorney laws.

On Monday, June 16, 2014, the Pennsylvania Senate adopted (50-0), after three required considerations, a revised version of House Bill 1429, into a new Printers No. 3708.  The Senate's version differs from the version that the House had adopted (198-0) nearly a year ago, on June 19, 2013, in the form of HB 1429, PN 2006.

Significant changes were suggested to Powers of Attorney, under Chapter 56, of Title 20, of the PA Probate, Estates & Fiduciaries Code, since at least March, 2010, due to a Report and Recommendations on Powers of Attorney, by the Joint State Government Commission's Advisory Committee on Decedents' Estate Laws.  

That Report was updated in a further June, 2011 Report and Recommendations on Powers of Attorney and Health Care Decision-Making, to address the concerns raised by the decision of the Pennsylvania Supreme Court in Vine v. Commonwealth, 9 A.3d 1150 (Pa. 2010). 

That case involved the statutory immunity afforded to third parties that act in good faith on the instructions of an agent pursuant to a facially valid power of attorney without actual knowledge that the power of attorney is void or voidable, has expired, or that the agent is exceeding the scope of his authority.  See: PA EE&F Law Blog posting, Proposed Amendments of PA POA, Guardianship & Health Care Directive Laws (06/14/11).

On March 12, 2013, the Senate Judiciary Committee reported from committee, its legislation in the form of Senate Bill 620. The Senate passed Senate Bill 620 on March 18, 2013, by a 48-0 vote.  

On June 19, 2013, the House passed its version of reform legislation, House Bill 1429, by a 198-0 vote.

The discussions resulting from that case, those Reports, and those two bills were long and detailed among representatives of the Pennsylvania Bar Association, the Pennsylvania Chapter of the National Association of Elder Law Attorneys, and the Joint State Government Commission staff.

Nearly a year later, on June 10, 2014, upon Senate Judiciary Committee consideration of HB 1429, PN 2006, and a package of amendments proposed to it, that bill's provisions were modified, reported to the Senate, and then adopted quickly by the Senate unanimously.  The Senate's own adopted bill, SB 620, remained pending before the House Judiciary Committee, even as HB 1429, as amended, was adopted by the Senate and returned to the House for concurrence.

Without knowing (but while holding hope), I assume that the recent Senate amendments are a form of compromise offered to achieve some legislation acceptable to both the House and Senate, and thereby end the long delay for reform of Pennsylvania's power of attorney law.

So, what might change?  I refer to an excellent summary of HB 1429, in its prior Printer's No. 2006, by Senate Counsel Gregg Warner, Esq. (a highly competent lawyer and a great guy), in his Memorandum of June 5, 2014, to the Senate Judiciary Committee, chaired by the prime sponsor of SB 620, Senator Stewart J. Greenleaf.

For the Senate's recent amendments, you must review the latest HB 1421, Printers No. 3708, which reveals additions and deletions. [See: Update below, which identifies most changes.]

The concepts discussed below highlight the many important changes proposed to PA's Power of Attorney statute, subject, still, to legislative agreement and to a Governor's concurrence.

Summary of House Bill 1429, 
in prior Printers No. 2006

Execution
 
A power of attorney shall be dated and signed by the principal. For a power of attorney executed on or after the effective date of this legislation, the signature or mark of the principal must be acknowledged before a notary public and witnessed by two individuals.

The notice provision that accompanies a power of attorney is expanded to inform the principal that the agent must act in accordance with the principal’s reasonable expectations to the extent those expectations are actually known by the agent and, otherwise, the agent must act in the principal’s best interest, in good faith and only within the scope of authority granted in the power of attorney.

If the principal grants broad authority to an agent, the notice warns the principal that the broad grant of authority may allow the agent to give away the principal’s property while the principal is alive or substantially change how the principal’s property is distributed at death. The notice advises the principal to seek the advice of an attorney.

The acknowledgement executed by the agent specifies that the agent must act with the principal’s reasonable expectations to the extent that the agent actually knows them and, otherwise, in the principal’s best interest. The agent must act in good faith and only within the scope of authority granted to the agent by the principal in the power of attorney.

The requirements for witnesses, notice and the agent’s acknowledgment do not apply to a power contained in an instrument used in a commercial transaction which authorizes an agency relationship.  The subsection has been restructured.

Also, the requirements of a notary, notice and the agent’s acknowledgment and the provisions relating to an agent’s duties do not apply to a power of attorney which exclusively provides for making health care decisions or mental health care decisions.

Agent’s duties
 
A section is added providing for the agent’s duties. Generally, an agent must act in accordance with the principal’s reasonable expectations to the extent the agent actually knows them and, otherwise, in the principal’s best interest. The agent must act in good faith and only within the scope of authority granted in the power of attorney.

In addition to the general duties, the amendment lists other duties of the agent that come into play unless otherwise provided in the power of attorney. They include acting loyally for the principal’s benefit; keeping the agent’s funds separate from the principal’s funds; acting as so not to create a conflict of interest; acting with care, competence and diligence; keeping records; cooperating with a person who has authority to make health care decisions for the principal; and attempting to preserve the principal’s estate plan.

Nonliability of an agent
 
The bill also lists when an agent is not liable. For example, an agent that acts in good faith shall not be liable to a beneficiary of the principal’s estate plan for failure to preserve the plan. Absence a breach of duty to the principal, an agent shall not be liable if the value of the principal’s property declines.

Disclosure of receipts, disbursements or transactions

Except as otherwise provided in the power of attorney, an agent shall not be required to disclose receipts, disbursements or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, a guardian, conservator, another fiduciary acting for the principal, governmental agency or, upon the principal’s death, the personal representative of the principal’s estate. The agent has 30 days to comply with the request or to indicate that additional time, up to an additional 30 days, is needed.

Specific and general grant of authority

A section is added limiting what an agent may do with the principal’s property. In these situations the power of attorney must expressly grant the agent the authority and the exercise of the authority may not have been prohibited by another instrument. The situations include powers such as creating, amending, revoking or terminating an inter vivos trust; making a gift; creating or changing rights of survivorship; and creating or changing a beneficiary designation.

Limited gifts
 
Section 5603 is amended to provide for the power to make limited gifts. Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to gifts authorizes the agent to make gifts in limited situations.

Third party liability

Sections 5601(f), 5608, 5608.1, 5608.2 and 5611 all apply to third party liability. A person who in good faith accepts a power of attorney without actual knowledge that it is invalid may, without liability, rely upon the power of attorney as if the power of attorney and agent’s authority were genuine, valid and still in effect and the agent had not exceeded and had properly exercised the authority.

A person who is asked to accept a power of attorney may, without liability, request further information including an agent’s certification, an English translation, or an opinion of counsel relating to whether the agent is acting within the scope of authority granted by the power of attorney.

Section 5608.1 provides for when a person may refuse to accept an acknowledged power of attorney. A person shall either accept a power of attorney or request an affidavit, certification, translation or an opinion of counsel not later than seven business days after presentation of the power of attorney for acceptance.

A power of attorney need not be accepted for certain reasons such as if the person is not otherwise required to engage in a transaction with the principal in the same circumstances; a request for a certification, a translation, an affidavit, or an opinion of counsel is refused; the person in good faith believes that the power of attorney is not valid or the agent does not have the authority to perform the act requested; or the person makes a report or has actual knowledge that another person has made a report under the Older Adults Protective Services Act stating a good faith belief that the principal is being exploited.

A person who refuses, in violation of this section, to accept a power of attorney shall be subject to civil liability for pecuniary harm to the economic interests of the principal proximately caused by the person’s refusal to comply.

Section 5608.2 provides for actions taken by employees. A person who conducts activities through employees shall be considered to be without actual knowledge of a fact relating to a power of attorney, a principal or an agent, if the employee conducting the transaction involving the power of attorney is without knowledge of the fact.

Update:  06/19/14:

The House concurred with the Senate and voted affirmatively on Wednesday, June 18th (193-0) to adopt the amended form of HB 1429, Printers No. 3708, as adopted on Monday, June 16th by the Senate.

The legislation was sent to the Governor for his signature, which I anticipate will be forthcoming, following the compromise attained in the Legislature.  For an update, see: PA EE&F Law Blog posting PA POA Reform legislation on Governor's Desk (06/19/14).

Gregg Warner, Esq., as Senate Judiciary Counsel, also drafted on June 5, 2014, a summary of the amendments (per Amendment No. A07520) considered by the Senate Judiciary Committee that resulted in the most current printers number for HB 1429.  

Following is that summary of the Senate's amendments, which resulted in the most recent version, which was adopted by the Senate on June 16th and returned to the House for concurrence.

Summary of Senate's Amendments
to House Bill 1429, into new Printers No. 3708

• This amendment makes additional revisions in the execution of powers of attorney when the principal is unable to sign but specifically directs another person to sign the power of attorney.  The notary public or other individual authorized by law to take acknowledgments for a power of attorney may not be the agent designated in the power of attorney.  Witnesses must be 18 years of age or older.

• The provision in the bill requiring an agent to keep the agent’s funds separate from the principal’s funds is revised.  There is already an exception if the funds were not kept separate as of the date of the execution of the power of attorney.  The amendment adds an exception in the case of a principal who commingles the funds after the date of the execution of the power of attorney and the agent is the principal’s spouse.

• A principal may specify certain powers by referring to the language in the statute.  A provision is added making clear that the principal may modify the authority of an agent that is incorporated by reference.

• Currently the statute states that an executed copy of the power of attorney may be filed with the clerk of the orphans’ court.  The amendment changes the provision to an originally executed power of attorney and allows a power of attorney executed in electronic form to be recorded.  Except for the purpose of filing or recording with the clerk, a photocopy or electronically transmitted copy of an originally executed power of attorney has the same effect as the original.

• The power to engage in securities transactions is clarified to include consolidations, dissolutions and liquidations.

• A person who is asked to accept a power of attorney may request an English translation of or an opinion of counsel regarding a power of attorney.  Generally the translation or opinion is at the principal’s expense unless the request is made more than seven business days after the power of attorney is presented.  The provision is expanded to include a power of attorney which was previously accepted but is presented to exercise a power not previously exercised by the agent in a transaction with that person.

• The effective date is changed to January 1, 2015.

A Memorial Birthday Message: Patti S. Bednarik

Patti S. Bednarik, Esq.

"Estate planning for pets" remains an important consideration for folks in a relationship with one or more beloved companion animals -- faithful pets -- whose well-being, even survival, depends upon a thoughtful owner. This is an awareness I've held for the past ten years or more, since being introduced to the concern by my dear late friend Patti S. Bednarik, Esq.

Tomorrow, May 21, 2014, would be her 57th birthday; but, so tragically, she left us last year on October 26, 2013, after courageous contention with cancer. 

Yet Patti feels quite near me this afternoon because of three events with synchronicity.

"Synchronicity" according to Wikopedia, is:

. . . the experience of two or more events as meaningfully related, where they are unlikely to be causally related. The subject sees it as a meaningful coincidence. The concept of synchronicity was first described by Carl Jung, a Swiss psychologist, in the 1920s. * * *

Three events today highlight this concept, and draw me close in memory of Patti.

Event No. 1: Patti's birthday tomorrow, which was brought to my attention by an email sent automatically from one of the social websites where Patti and I still remain connected as "friends", despite her death.

Event No. 2: An email message sent by Progressive Law Practice highlighting an article entitled In Pets We Trust: Providing for Animal Care After Death (05/20/14). The article discusses "pet trusts" -- a legal structure allowed in 47 states, including Pennsylvania under the PA Uniform Trust Act, effective in 2006.  I served on the drafting subcommittee, and advocated for inclusion of "pet trust" provisions (Sections 7738 & 7739), which thrilled Patti. That "pet trust" article demonstrates the new opportunities opened by animal-loving lawyers, like Patti.

Event No. 3: Another email message, sent by the Pennsylvania Bar Association, reminding members of the PBA Animal Law Committee about our upcoming meeting, to be held Thursday, June 5, 2014, at 11:30 a.m., in Harrisburg and Philadelphia, with conference call-in capability for members. Patti was founder and first chair of the Animal Law Committee.

Two months ago, I intended to post a remembrance of Patti by way of a Memorial Resolution drafted by me and Jesse Smith, Esq.  Perhaps from sadness, I delayed.

With such synchronicity at work today in three separate elements with a common thread, I get the message.  I must post that remembrance now, on the eve of Patti's birthday, in celebration of her life's work, loving and protecting animals.

The Memorial Remarks below were presented orally, with some alterations, at a session of the Dauphin County Court of Common Pleas, sitting in a Memorial Resolution Session, at 4:00 PM, Wednesday, March 19, 2014, on behalf of a committee tasked with honoring the memory of Patti, publicly. The final version, in PDF format, is found on the "Memorials" web page of the Dauphin County Bar Association's website.

Jesse, as committee chair, presented it, along with a resolution (omitted below), in a packed courtroom.  [My additions and links are indicated in brackets.]

I offered an oral "second" to the Memorial Resolution. My remarks (edited a bit from the court transcript) provide a fitting conclusion to this blog posting in Patti's honor, as she speaks directly to us.

Memorial Remarks for

Patti Rose Scheimer Bednarik

"It is not length of life, but depth of life."
-- Ralph Waldo Emerson

Introduction

Greetings to the Judges of the Court, to Patti’s beloved husband and fellow attorney Joseph Bednarik, to family members including her brothers Alan, Craig and Gary Scheimer, to friends and coworkers, and to her colleagues at the Bar.

We come together today to mark the transit of Patti Bednarik through our ranks. She stood among us, and then she was gone -- far too soon, on October 26, 2013, at the age of 56 -- after courageous fights with a major heart attack, kidney disease, and finally cancer.

She will be remembered. Her legacy will be perpetuated by those whom she inspired, and also through the work she accomplished.

From Plato and the Pythagoreans, through many religions, and into our common thought today, there is the notion that all good things come in threes. Today, as her professional peers, we think about Patti as a wonderful combination of three distinct qualities and roles, in one person.

This is not to disregard her roles as a spouse, a sister, an aunt, or a friend. But today, we celebrate her role as an attorney.

Patti was an unusual combination of:

• an administrator demanding accountability, 

• an advocate seeking change, and

• an adventurer indulging in exploration.

She demonstrated that one person can enforce legal standards and rules as an administrator while prosecuting cases, and then pioneer change in a new area – Animal Law - with passion as an advocate, and yet still enjoy living with excitement and wonder as an adventurer.

Think of these three roles as we tell her story.

Early Life, Education, and Travels

Patti was born on May 21, 1957, in Mount Lebanon, Pittsburgh, Pennsylvania, to Milton and Beatrice Scheimer, known to all as "Buzzy" and "Skippy". Her parents were sweethearts in high school, where Buzzy was the class president (with a great sense of humor), and Skippy was homecoming queen.

The Scheimers had three sons – Alan, Craig and Gary -- before Patti, their only girl. Justice Max Baer, one of Patti’s cousins, remembers the joy that the announcement “It’s a girl” brought to their family.

Her father affectionately called her “Rosie”; others called her “Patti Roses.” Always, a loving family molded Patti’s life. She eventually became an amazing aunt to eleven nieces and nephews, including her godson Benjamin Baer, who is now an attorney.

Patti was always an adventurer. At age 7, she went on a bike ride before learning how to use the brakes. She went over a cliff and hit a tree. This serious accident likely taught her something about consequences.

However, the memory of it did not keep her from relearning how to ride a bike during law school. Then, in 2012, she rode a bike 18 miles down a mountain in a Jamaican rainforest. We assume the length of the ride was due to her intentions, not to any lingering confusion about the brakes.

Patti was known from an early age as brilliant. However, she was also absent-minded. Can any of you relate to this?

Patti kept losing her house keys! To help, her father installed in their home what may have been the first keyless entry system in Pennsylvania, proving that obstacles can be overcome.

On August 23, 1972, a 15-year-old Patti decided to reserve that random day of the year, each year, for “celebration, introspection and reflection,” and for trying something new. She did this for the next forty years, resulting in escapades, new skills, and service to others.

Patti finished high school early so she could spend a year in Israel. Against all expectations, she returned home with a boyfriend who was not Jewish, but a Bedouin Muslim. Luckily for Joe, that relationship did not last, but it did provide Patti with experiences like riding a donkey sidesaddle to family gatherings.

Patti chose not to join the family appliance business with her father and two of her brothers. Instead, she started college at Pennsylvania State University, transferred to George Washington University for one semester, left college and worked for a year for the United States Senate Budget Committee, then returned to Penn State.

There she settled into a major -- Social Welfare. She excelled and became a College Marshal -- a student with near-perfect grades and many honors and activities -- who was chosen by faculty to lead her thousands of College classmates into graduation ceremonies in 1981.

During that one college semester in Washington, D.C., in 1977, she met her future husband, Joe Bednarik. He was finishing law school. She signed up on a “ride board” to share a ride to their mutual hometown, Pittsburgh. They would date for seventeen years before marrying in April 1994.

After college, Patti returned to Israel for a year to work for the United Nations, studying the elderly population there. She became fluent in Hebrew, which she later taught at her temple.

Upon her return from Israel, she first earned a master’s degree in social work from the University of Maryland, and then a law degree from UCLA School of Law, in Los Angeles, California.

Characteristically, immediately after graduation from law school, she went on a whirlwind tour of fifteen countries in seventeen days, before she began work at a California law firm as a litigation associate.

Joe accompanied Patti to California for her legal education and her early years of practice. He stayed there when Patti returned to Pittsburgh to care for her ailing mother. After her mother’s death, Patti got a new job – in Las Vegas, Nevada! So Joe who loved the desert was in Venice Beach, California; and Patti, who loved the beach, was in Las Vegas. But not for long.

Both decided to return to Pittsburgh – neither the beach, nor desert, but home -- in 1989.

 
As an advocate, Patti worked as an Assistant District Attorney in the Allegheny County District Attorney’s Office, while Joe got a job in Harrisburg.

Patti proposed to Joe in November 1993, with dramatic flair – she used the scoreboard at a Penguins hockey game at the Civic Arena in Pittsburgh before thousands of fans.

Work and Life in Harrisburg

In 1996, Patti began work at the Supreme Court Disciplinary Board in Harrisburg, when many of us came to know her.

Now begins our formal recitation of Patti's accomplishments, both as an administrator and also as an advocate, while she was among us in Harrisburg:

• Counsel for District III, Office of Disciplinary Counsel, of the Disciplinary Board of the Supreme Court of Pennsylvania (1996-2010)

• Member, Pennsylvania Board of Law Examiners, Supreme Court of Pennsylvania (2007-2010)

• Founder and first Chair of the Animal Law Committee of the Pennsylvania Bar Association

• Course Planner for the first Animal Law Conference presented by the Pennsylvania Bar Institute in 2004, and the planner thereafter

• Member (appointed by Governor Edward G. Rendell in 2006) of the Dog Law Advisory Board, where she helped pass a stricter law for commercial breeding kennels a/k/a puppy mills.

• Adjunct Professor of Law, first at Widener University School of Law (Harrisburg Campus) teaching Professional Responsibility, and then at Penn State (Dickinson) School of Law (Carlisle Campus), teaching its first Animal Law course.

• Director of Character and Fitness for the Pennsylvania Board of Law Examiners (2010-2013), where she determined the suitability of candidates for admission to the Pennsylvania Bar.

That is an impressive record.

How she acted, while doing all that, is better described by others who knew her:

• "Patti was honest, unaffected, and authentic. She said what she thought and didn't try to color it. And she was completely truthful, not because she wanted to be, but because she didn't know how to be anything else. She had a keen mind, an impressive intellect, and a wit to match."

• "In her teaching, Patti was as she was in all things -- incredibly patient, dedicated, and thoughtful. Patti had an enviable ability to 'connect' with people and share her passions. One testament to her teaching ability was that every year she taught, her enrollment grew."

• "Patti called me all excited to tell me about the seminar that she had finally managed to convince PBI to present on Animal Law and listed the topics that would be covered. I replied 'But Patti, you haven't included anything about service animals.' Patti didn’t miss a beat. 'You're absolutely right', she replied. 'Will you present on that?' Patti's enthusiasm was always so contagious. She had her topic and presenter."

• "Patti was not just a dreamer; she was a doer. Her aspirations rose high, while her work remained grounded. For those of us who watched her do it, we instinctively felt her passion, attention, and energy."

Patti loved animals and especially dogs -- perhaps the most devoted of pets. On weekends, Patti and Joe transported homeless dogs in legs of journeys to shelters, foster homes, and adoptive families. Patti continued this volunteer work until she could no longer drive.

After Hurricane Katrina struck, Patti and Joe traveled to Louisiana to work with the Humane Society, helping to rescue dogs abandoned in New Orleans. There they found and adopted their beloved Chow Chow, Trina, who became a star guest at the PBI Animal Law Conferences.

"Patti’s Battle"

Patti learned several years before her death that she had polycystic kidney disease and would eventually need a transplant. That time came in November 2012, when Patti was returning from a bus trip, helping victims of Hurricane Sandy. She had already survived a major heart attack in 2011. She celebrated her recovery in 2012 with a “Happy to be Alive” party attended by over 100 guests. Now she was engaged in a new battle for survival.

At least ten people immediately began testing to donate a kidney for Patti. One was Dr. Deborah Toder, a friend of Patti’s since age two; one was attorney Nadia Adawi, Past Chair of the PBA Animal Law Committee – neither was a match. Attorney Laurie Besden was a match and had committed to donate her kidney. Instead, Patti ended up receiving a transplant from a dying donor at University of Pittsburgh Medical Center.

But one week after the successful transplant, she learned from her physicians that she had Stage 3 cancer. After initial treatments, she and Joe returned to their mutual home, Pittsburgh, again. They bought a furnished house with a view of the home where Patti grew up.

So, after all her adventures -- parachuting from an airplane, paragliding over glaciers in Alaska, swimming with wild Hector Dolphins off the shore of New Zealand, riding the scariest roller coasters, studying tap dance, and engaging in meditation -- she returned to her roots: a familiar place, and her family.

Her sister-in-law, Deborah Scheimer, sent email updates about Patti’s condition under the heading “Patti’s Battle.” Patti contributed her own positive and grateful commentary when she could.

On Saturday morning, October 26, 2013, Deb sadly wrote: “Our dear Patti’s battle is over. She slipped away peacefully as she slept last night. May Her Memory Be a Blessing.”

Patti’s Legacy

Numerous stories and obituaries about Patti appeared, including those in the Pittsburgh Post-Gazette [Patti Bednarik / Attorney was advocate for animal rights, published 10/27/14], the Harrisburg Patriot-News [Aug. 23 Adventure challenges you to do something extraordinary on an ordinary day, published 03/30/13, and Pennsylvania animal-law pioneer remembered for both her passion and her compassion, published 11/05/13], and the Philadelphia Inquirer [Patti Bednarik: Champion of animal welfare, published 10/29/14]. These accounts highlighted the loss of a very special person, who bravely fought her last battle.

[For a touching personal reflection about Patti, by a young lawyer once taught by her, see: Patti Bednarik – My Inspiration, posted October 31, 2013, by Angelique M. Bailey, Esq.]

Conclusion:

In the November, 2013 Newsletter of the Pennsylvania Supreme Court's Disciplinary Board, the esteem held for Patti by her professional peers was stated clearly:

Patti’s enthusiasm and positive outlook were an inspiration to all who knew her.

She was a skillful lawyer, a passionate teacher and advocate, a generous, adventurous spirit, and a treasured friend.

We will miss her deeply.

Well said, and known as true by us, her Memorial Committee, about our dear friend and professional peer, Patti Bednarik, Esquire. * * *

Oral Seconding Remarks

in Memory of Patti S. Bednarik, Esq.

by Neil E. Hendershot, Esq.

I rise to second the resolution, and most particularly the second phrase of it, talking about how Patti was inspirational for us.

Patti was a special friend of mine.  Let's see, I think she was a special friend to anybody she knew.  Would you agree?  

I got to know her in 2004 or '05 when she was planning that first Animal Law Institute.  I got one of those calls.  She wanted to have someone talk about "estate planning for animals".  So I became the spokesperson initially for Estate Planning for Pets statewide in Pennsylvania -- because Patti wanted somebody to do that.

I followed her through some of her other challenges -- when she wrote [and arranged for] the PBA Quarterly articles about Animal Law, and when she worked to found the Committee on Animal Law of the Pennsylvania Bar Association.  Luckily I never associated with her in her professional role as disciplinary counsel.

Patti and I had a special relationship in another way.  We both had some physical suffering.  On my part, I had a burst appendix, and I've had a broken neck.  On Patti's part, she had a severe heart attack, kidney failure, and then cancer.

It is amazing how the Emerson quote [above] is correct -- It's not the length of a life, it's the depth -- and it's not the length of time that you spend with someone, it's the depth of your connection when you do it.  That's the way it was with Patti and me.

At the Animal Law Institute, we spent an hour and a half talking about her heart operation.  We approached subjects that lawyers generally don't talk about -- death, God, responsibility.  

One week before she had her scheduled transplant, she called me.  She said "I had to. I need to talk about those things again." For three hours we talked about those subjects again.

Then when she got the diagnosis of cancer, we started up an e-mail exchange and we talked about those [same subjects again].

I'm going to finish my second, not by speaking anymore about Patti; but I'm going to let Patti speak to you from some of those e-mail exchanges that we had, and some that [her sister-in-law] Deb posted.  

This is what Patti had to teach us, and now teaches you:

• One of the things that was reinforced in my life was how many wonderful, selfless, loving, and supportive people I have in my life, and how much I have to be grateful for.

• I know how fortunate I am to have such a loving committed family and such great friends.

• Before cancer, I was constantly multitasking and judging myself, mostly on how much I accomplished.  For example, I don't think I ever drove a car without listening to an audiobook.  Now, when I get into my car, I often don't have the radio on or an audiobook.  I am content to drive the speed limit and just concentrate on where I'm going. 

• I am learning not to judge myself for what I can accomplish and to just appreciate living.  There was an article in The New York Times yesterday entitled "The Value of Suffering" [by Pico Iyer, published September 7, 2013]. The author wrote that a Hindu tradition stated people should have to pay for suffering, because it is such a hidden blessing in people's lives.  Often, people gain a certain clarity about their life and their place in the world.  I have noticed that many of the cancer survivors whom I have met, seem to have a heightened sense of empathy and compassion. 

• I too believe we all have a mission and purpose in life that is God's Will.  I have been trying to express my gratitude everyday to God for the fact that my kidney is working well, and for all of the little things along the way that made it possible for me to get a transplant.

• Believe me, I will continue to try to celebrate the good things in my life, and to pray for good things in your lives.

So, I second the resolution.