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.

Health Laws Impact LGBT Folks

Impact of Health Law on LGBT Individuals and Families is the title and subject of a 1½ hour continuing legal education program to be held on Friday, October 12, 2012, as sponsored by the Allegheny County Bar Association, through its Health Law Section, in partnership with its LGBT Rights Committee, which was created in March, 2012.  Highmark underwrites the program.

A panel of experts representing perspectives from across the industry will present an assessment of the new federal healthcare reform law, FMLA [Family and Medical Leave Act], Advance Directives and Health Care Decision Making, and Hospital Visitation and Consent to Treatment for Minors and will discuss the impact of these laws on the LGBT community.

Much of this information will also apply to other non-traditional families.

This program will serve healthcare providers and their attorneys who need to be aware of the unique characteristics and challenges of LGBT individuals and families, as well as other nontraditional families, in the healthcare setting.

LGBT (lesbian, gay, bisexual, and transgender) folks, or individuals in "non-traditional" families, have drawn greater attention during the past twenty years.  In the healthcare delivery and decision-making settings, their personal expectations and interpersonal relationships often become ignored or overridden by application of statutes that grant "default" rights to others, defined by bloodline or traditional legal relationships.  

Awareness, forethought, and implementation are recommended for LGBT folks, their families, and their attorneys to overcome such hurdles.  Absent attention, planning, and documentation, an unwanted, unnecessary crisis might result.

On June 19, 2012, the federal Health and Human Services Department, through its LGBT Issues Coordinating Committee, issued its 2012 Report, entitled "Improving LGBT Health" (PDF form).  Its introduction repeated a national philosophy:

It’s at the heart of the American dream: the belief that if you work hard, if you're responsible in your community, if you take care of your family, then that’s how you should be judged.  Not by what you look like, not by how you worship, not by where you come from, and not by whom you love. 

This belief means ensuring that LGBT Americans have the same protections and opportunities as their neighbors, colleagues, and family members.  And over the last three years, this Administration has undertaken a broad agenda to do just that.”

That report highlighted two concerns, which should be addressed under Pennsylvania law at the ACBA's program:

Of critical importance for LGBT advocates is the CMS position on medical decision-making, allowing LGBT couples greater flexibility to make care decisions for their loved ones.

Similarly, it is important that LGBT patients and their families are more recognized in health care service delivery environments and approaches, including the development of a culturally competent service standard to be followed by healthcare professionals and organizations. * * *

The presenters at the ACBA program will be:

• Robert Wolf, Esq. (Advance Directives, POLST, Healthcare Decision Making) Tener, Van Kirk, Wolf & Moore, PC; 
• Elisabeth J. Poggi, Esq. (Advance Directives, POLST, Healthcare Decision Making) Buchanan Ingersoll & Rooney PC; 
• Sheryl Kashuba, Esq. (Hospital Visitation and Consent to Treatment for Minors) UPMC Health Plan; 
• Vikram Mangalmurti, Esq. (Accountable Care Act) VP Highmark Office of Healthcare Reform; and
• Mark Phillis, Esq. (Family and Medical Leave Act) Littler Mendelson, PC

The program will be held on Friday, October 12, 2012, in the ACBA Conference Center Auditorium, 920 City-County Bldg., 414 Grant Street, Pittsburgh PA, with registration and lunch from 11:30 AM – 12:00 Noon, followed by the presentations until 1:30 PM.

For ACBA members, the cost is $25, and for others, $60.  Registrations can be made online through the ACBA.

Organ Donation: Questions & Myths Discussed

On Friday, August 31, 2012, WITF-FM (Harrisburg, PA) broadcast a Radio Smart Talk program 50 minutes long, entitled What questions do you have about organ donation? 

The initial guest of host Scott Lamar was John Green, Director of Community Relations for the Gift of Life Donor Program, of Philadelphia, PA.  He first focused on questions and myths regarding organ donation.

For example, a study released earlier this year found that about a quarter of the respondents believed doctors wouldn’t try to save the life of someone designated as a donor.

Others thought that they couldn’t donate because they have a history of illness or that they were too old to donate.

About 80,000 people across the country are awaiting organ transplants. Some will die while they’re still waiting.

Later in the program, personal experiences were shared by a Middletown man who received a transplanted kidney, and by another Pennsylvanian whose son awaits a suitable liver transplant.

WITF's web page devoted to this particular program lists the following useful resources on the topic:

• Organ Tissue Donation Awareness Education Project - Intermediate Unit 13 (717-606-1795)
• Center for Organ Recovery and Education, of Western PA (800-366-6777 or 412-963-3550)
• Gift of Life Donor Program, of Eastern PA (800-366-6771)
• United Network for Organ Sharing (UNOS) (888-894-6361)
• Health Resources and Services Administration, Division of Transplantation (301-443-7577)
• Department of Health and Human Services, Organ Donation
• National Minority Organ Tissue Transplant Education Program (800-393-2839)
• National Coalition on Donation (804-782-4920)
• National Marrow Donor Program (800-627-7692)
• Donate Life-PA

Other resources are listed on the website of the Gift of Life Donor Program.

Title 20 (the Probate, Estates & Fiduciaries Code) of Pennsylvania statutes, authorizes organ donation upon consent or direction pursuant to unique provisions not parallel to, but similar in outcome to, the Uniform Anatomical Gift Act.

Many medical and humanitarian organizations actively promote organ donation here; and most religions sanction it under certain circumstances. See: PA EE&F Law Blog postings Organ Donation in Pennsylvania (06/14/07), Uniform Anatomical Gift Act in PA Someday? (06/20/07), and Religious Views on Organ Donation (09/11/08).

A need always exists.  Successful transplants renew other lives.  Listen to the program to find out why and how.

I am both a transplant recipient and a designated donor, so I support this movement.  To learn more about organ donation in a pleasant, informative conversation, listen to the program through an online link.

"Closure": Change Expectations for End-of-Life

The Closure online multimedia educational project of the Jewish Healthcare Foundation, Inc., of Pittsburgh, PA, "is an initiative to change expectations for end-of-life." 

The Project's goal is "to empower consumers and healthcare professionals with easy-to-access, simple-to-understand information and resources to make educated decisions about end-of-life care."

No one wants to die. But the truth is everyone’s life will someday come to an end. It’s important to think about what you want, and what you want to avoid.

Closure is not going to make talking about death any easier. Nothing can do that. But our resources and tools will make the process of determining what you want at end-of-life less difficult and confusing.

The online presentations are professionally crafted, substantively accurate, seriously sensitive, and efficiently educational.

The Closure 101 Project offers "a curriculum of educational lessons dealing with an array of complex end-of-life issues."  The lessons cover issues arising from a medical diagnosis and treatments that may lead to decline and death.  How can we maintain dignity, respect, and love during such a stressful and demanding process that involves not only the patient, but a family and friends?

These lessons teach in twelve videos with slides, each introduced on that website:

1. Questions to Ask the Doctor -- People often have a lot of questions when they learn that they have a serious illness or that a loved-one has developed a life-threatening disease. Where should you start? What are the most important questions to ask? This lesson will help guide you through an open and honest conversation with your doctors.
2. Prognosis -- Many people with a chronic illness want to know exactly how long they have left to live. While no one can make an exact prediction, understanding your prognosis is very important in determining what treatments you want to pursue. This lesson will explain how to talk to your doctor about your prognosis and highlight what important questions you need to ask.
3. Decision Making -- There are many treatments which are often tried in patients with a serious, life-threatening illness to attempt to lengthen life. Sometimes these treatments are life-saving. Other times, these treatments may make little or no difference in how long or how well someone lives and may increase his or her suffering. This lesson highlights what decisions you may need to make and what to consider when weighing your options.
4. Advance Planning -- It’s important for you to plan ahead while you are healthy and able to make decisions about end-of-life. Planning ahead gives you the opportunity to get input from your family, doctors and religious advisors. This lesson explains why advance planning is important and teaches you how to complete a living will.
5. Hospice and Palliative Care -- Palliative care is appropriate for anyone with a life-limiting disease, including cancer, serious heart disease, end-stage dementia or lung diseases. It focuses not only on physical comfort, but also provides emotional and spiritual care. Hospice is a type of palliative care. This lesson clearly outlines the specifics of both options.
6. Medicare Hospice Benefit -- The original goal of the Medicare Hospice Benefit (MHB) was to support families caring for a dying relative at home, but that has evolved. The MHB now pays for medical, nursing, counseling and bereavement services to terminally ill patients and their families. This lesson outlines the key points of the MHB so that you can better access the services that you need when you need them.
7. End-Of-Life Care for Children -- Despite remarkable advancements in medicine, many children with a life threatening illness will die. In this lesson, you will learn about how and why the experience of serious illness and dying is different for children and see what solutions pediatric palliative care can offer in those situations.
8. Caregiver Stress -- Caring for someone who has become ill or losing a loved one that you were caring for can induce a stress response. We cannot make stress go away but we can change how our brain responds to it. This lesson introduces a series of healthy lifestyle behaviors and the techniques that will reduce the influence of stress on your mental and physical health.
9. Long Distance Caregiving -- Long distance caregiving has its own unique challenges. This lesson provides you with the tools to overcome those challenges. You will learn about available support and resources as well as new techniques to ensure that you are also taking care of yourself.
10. When Your Loved One is Dying -- Being a caregiver to someone who is dying can be a meaningful experience. But you may have a lot of questions about what to expect and how to care for your loved one. This lesson will help you gain a better understanding of the changes that are taking place and explain what to do if something goes wrong.
11. Grief and Mourning -- Death is part of the life cycle that will affect all of us in our lifetime. Grief is one of the most universal human reactions, yet it is unique to each bereaved individual and can be very isolating. In this lesson, you will learn the six tasks of mourning, uncover myths and symptoms surrounding grief and learn where to find support.
12. Religious and Cultural Issues -- Each religion or culture has its own way of dealing with the fear, moral uncertainty and deeper meaning associated with death and dying. This lesson will introduce you to end-of-life traditions from varying religious and cultural backgrounds.

I viewed most videos and recommend them.  There is no "religious" message or agenda promoted, despite sponsorship by a faith-oriented organization.  The lessons seem suitable for all faiths and cultures.

The website also offers a personalized Self Assessment to help customize and specialize online learning.  If you register, the website can retain logged user information to resume viewing sessions later.

These lessons could be the foundation for group teaching or discussion in a community or church setting.

The Closure website lists many valuable collections of resources, such as:

• National Resources: Quick links to useful Web sites and online tools that can help you broaden your knowledge about end-of-life care issues and aid in your decision-making process.
• Southwestern Pennsylvania Resource Directory: A comprehensive guide to resources about end-of-life issues for residents of southwestern Pennsylvania. 
• Helpful Tools: An index of important documents and tools for end-of-life planning that you can download and complete.
• Books and Manuals: A listing of books and manuals dealing with end-of-life care issues.
• Useful Terms: An online glossary of important terms and acronyms for patients and families.

These are valuable end-of-life coping resources that should be made available to patients in treatment centers and hospice facilities everywhere in Pennsylvania.

Proposed Amendments of PA POA, Guardianship & Health Care Directive Laws

On June 14, 2011, the Pennsylvania Joint State Government Commission posted the latest report (June, 2011) of the Advisory Committee on Decedents' Estates Laws regarding proposed amendments to the Probate, Estates, and Fiduciaries Code (PEF Code), which is available here.

This latest report (June 2011; PDF, 85 pages) alters and updates a prior report (June 2010; PDF, 87 pages) of the same organization regarding the PEF Code.

The two reports are the product of Subcommittee study and drafting, Advisory Committee review and revision, and JSGC approval, for submission to the Pennsylvania Legislature:

Over the years, the Advisory Committee has formed various subcommittees to assist in reviewing specific topics and developing statutory recommendations involving the Probate, Estates and Fiduciaries Code for consideration by the Advisory Committee.

The Subcommittee on Guardianships and Powers of Attorney was formed to review, among other things, 20 Pa.C.S. Chapters 54 (health care), 55 (incapacitated persons) and 56 (powers of attorney).

The subcommittee consists of John F. Meck, Esq., Chair; Robert Clofine, Esq.; William R. Cooper, Esq.; The Honorable Calvin S. Drayer, Jr.; Jay C. Glickman, Esq.; Neil E. Hendershot, Esq.; The Honorable Anne E. Lazarus; John J. Lombard, Jr., Esq.; James F. Mannion, Esq.; Michael J. Mullaugh, Esq.; R. Thomas Murphy, Esq.; The Honorable Paula Francisco Ott; The Honorable Stanley R. Ott; William Campbell Ries, Esq. and Robert B. Wolf, Esq.

After reaching consensus on its legislative recommendations, the Advisory Committee presents its recommendations to the Task Force on Decedents’ Estates Laws, which is a bicameral and bipartisan panel of legislators. The Task Force authorizes the Joint State Government Commission to publish a report containing the recommendations, which serve as a basis for legislation. * * * [Paragraphs rearranged]

What is in the June 2011 Report?  Its proposed legislation would reverse one Pennsylvania Supreme Court decision (Vine, December 21, 2010) regarding financial powers of attorney, and clarify the guardianship and healthcare decision-making statutes after another Pennsylvania Supreme Court decision (D.L.H., August 17, 2011) regarding medical decision-making.

In response to the Vine [v. Commonwealth, 9 A.3d 1150 (Pa. 2010)] and [In Re] D.L.H. [2 A.3d 505 (Pa. 2010)] rulings of the Pennsylvania Supreme Court, the Subcommittee on Guardianships and Powers of Attorney reviewed the topics of powers of attorney and health care decision-making and presented its recommendations at the 2011 annual meeting of the Advisory Committee.

The Advisory Committee reached consensus on the recommendations, and the Subcommittee subsequently finalized specific statutory amendments to the Probate, Estates and Fiduciaries Code, which are contained in this report.

The major statutory amendments that form the basis of this report concern the following:

(1) Third party liability and immunity regarding powers of attorney under 20 Pa.C.S.  Chapter 56, in light of the Vine ruling.
(2) An acknowledgment by the principal and affidavits of the two witnesses for powers of attorney.
(3) Health care decision-making by guardians under 20 Pa.C.S. Chapters 54 and 55, in light of the D.L.H. ruling.

Proposed legislative reversal of the Vine holding was explained in a Memo, dated April 4, 2011, from Senator Stewart J. Greenleaf to all Pennsylvania Senators:

[The Court's opinion appears to remove the immunity third parties have had for decades in relying on facially valid power of attorney.

Third parties will now be put in a position of having to investigate the circumstances surrounding the execution of a power of attorney.

Instead of routinely relying on the validity of a power of attorney, they may have to seek the principal's ratification before acting. And, in turn, if the third party questions the power of attorney and does not comply with the instructions of the attorney-in-fact, the third party could find itself subject to liability for failing to comply with an agent's instructions. * * *

The need for remedial legislation after the Vine decision was highlighted by a Pennsylvania Bar Association Recommendation, dated April 11, 2011.  That Recommendation concluded:

These amendments are vital to restore commercial viability of Powers of Attorney following the decision in Vine v. Commonwealth, 9 A.3d 1150 (Pa. 2010), while still adopting appropriate new safeguards for potentially vulnerable principals. In expressing our support for prompt action by the Pennsylvania State Legislature, we have carefully considered the proposals by the Joint State Government Commission and we support the Commission’s approach to the necessary amendments of existing statutes.

As a means of strengthening the original execution of powers of attorney in Pennsylvania, the most recent proposal would require notarization of the maker's signature and affidavits by two witnesses, which requirements parallel those of a self-proving last will.  Other amendments would allow for use of facsimile copies of documents.

The other proposal in the June 2011 Report would clarify points made in the D.L.H. case, where the PA Supreme Court considered, "[W]hether plenary guardians can refuse life-preserving medical treatment on behalf of a person who lacks -- and has always lacked -- the capacity to make personal healthcare decisions, where the person is neither suffering from an end-stage medical condition nor permanently unconscious."

Careful study of that decision revealed areas of the Guardianship statute and the Health Care Decision Making statute that should address long-term and end-of-life medical decision making by a court-appointed guardian.  The result would be these amendments:

• § 5521. Subsection (d.1)(1) is added to provide that a guardian of the person for an incapacitated person shall have the same authority to make health care decisions on behalf of the incapacitated person as a health care representative, and a decision shall be effective without court approval, subject to (1) any limitations and conditions set forth in the order of appointment; (2) the same health care decision-making process as prescribed in the statutory provisions regarding the authority of a health care agent in making health care decisions; (3) the same limitations regarding pregnancy and regarding the duties of an attending physician and health care provider under Chapter 54; (4) the statutory provisions regarding powers and duties only granted by the court and regarding powers and duties not granted to a guardian; and (5) any other provision regarding health care representatives as set forth in Chapter 54, except the statutory provisions regarding who may act as a health care representative.

• Subsection (d.1)(2) is added to specify that, to the extent practicable, a guardian of the person must consult with close family members of the incapacitated person in making a health care decision, particularly one involving end-of-life decision-making.

• Subsection (d.1)(3) is added to require that a petition that is filed for the appointment of a guardian of the person on or after the effective date of the act must state whether it is proposed that the guardian of the person shall have the power to make health care decisions and, if so, whether the guardian shall have all the powers of a health care representative to make such decisions, and any limitation of those powers.

• Subsection (d.1)(4) is added to require that the notice of a petition or hearing must contain the information under the previous paragraph.

• Subsection (d.1)(5) is added to require that an order of appointment of a guardian of the person that is issued on or after the effective date of the act must specify whether the guardian of the person shall have the power to make health care decisions and, if so, whether the guardian shall have all the powers of a health care representative to make such decisions, and any limitation of those powers.

• Subsection (d.1)(6) is added to specify that a guardian of the person appointed before the effective date of the act shall have the same powers as a health care representative unless (1) a prior court order has limited the power of the guardian to make health care decisions or (2) a health care representative is available and assumes authority to act by agreement between the health care representative and the guardian, in which case the guardian thereafter has no health care decision-making powers.

I serve as a Guardianship/POA Subcommittee member and as an Advisory Committee member, and I worked on the reports and recommendations.

I strongly advocate for the Legislature's adoption of the recommendations contained in the June 2010 Report, as modified by the June 2011 Report.

Update:  10/27/11:

In searching bill information on the website of the Pennsylvania General Assembly, I do not find any legislation pending that derives from the two reports.

However, a guardianship-related bill, House Bill 1720, was introduced recently and finds support.  See: PA EE&F Law Blog posting "Granny Snatching" Prohibition Pending in PA (10/25/11).

PA Health Department Posts New POLST Form

On November 16, 2010, the Pennsylvania Department of Health posted on its website a new standard form for Orders for Life-Sustaining Treatment (POLST), revised 10/14/10. 

The form was listed under the website's Quick Links, but does not appear to be the subject of any press releases or further highlighted bulletins.

The concept and implementation of physician-ordered life-sustaining treatment orders is discussed in detail on the national website of that movement -- POLST.org -- which maintains this paradigm:

The Physician Orders for Life-Sustaining Treatment (POLST) Paradigm program is designed to improve the quality of care people receive at the end of life. It is based on effective communication of patient wishes, documentation of medical orders on a brightly colored form and a promise by health care professionals to honor these wishes.* * * 

Effective communication between the patient or legally designated decision-maker and health care professionals ensures decisions are sound and based on the patient’s understanding their medical condition, their prognosis, the benefits and burdens of the life-sustaining treatment and their personal goals for care.

The state-by-state implementation map on that website now needs a change.  Pennsylvania should shift from the color grey (no program), to red (endorsed programs).

The Pennsylvania POLST form is explained generally by the Explanation that accompanies it:

Pennsylvania – Orders for Life Sustaining Treatment (POLST) is a medical order that gives patients more control over their end-of-life care. The POLST form specifies the types of medical treatment that a patient wishes to receive towards the end of life.

These medical orders are signed by both a patient’s physician, physician’s assistant, or certified registered nurse practitioner and the patient or the patient’s surrogate.

Completion of a POLST form is only a small step in the process of a patient’s decision-making, and it is critical that this form be used as part of a program for end of life decisions that includes educational support and other aspects of planning for providers and patients.
 
This form was developed by the Pa. Department of Health’s Patient Life Sustaining Wishes Committee and was designed to be consistent with Pennsylvania law. There are significant advantages to using a form that contains standardized language and is produced in a distinctive and easily recognizable format. 

In order to maintain continuity throughout Pennsylvania, please follow these printing instructions: 

*** Print POLST form on 110# Pulsar Pink card stock. ***

 
See additional instructions on the POLST form related to completing and using the form.
 
As additional educational materials are developed for the POLST form and for POLST programs in Pennsylvania, they will be added to this introduction.

In recent years, the Department of Health has actively addressed end-of-life issues affecting Pennsylvanians through study groups and reports.  See:

• End of Life Experiences in Pennsylvania -- A Background paper (May, 2005; PDF, 38 pages); and
• Improving End-of-Life Experiences for Pennsylvanians (2006; PDF, 40 pages) -- Report and Recommendations to the Governor by the Task Force for Quality at the End of Life.

A new POLST form for Pennsylvania was contemplated by the most recent study report, End-of-Life Care in Pennsylvania -- Final Report (2007; PDF, 121 pages), which attached as Appendix "F" the POLST form used in Oregon, which has become standardized nationwide.

The new Pennsylvania POLST form is virtually identical, except for layout and explanations, to the sample form contained in the 2007 Final Report.

Administrative issuance of a POLST form for Pennsylvania was authorized by Act No. 169 of 2006, effective January 29, 2007 (replacement Chapter 54 in the PA Probate, Estates & Fiduciaries Code), pursuant to its Section 5548.

The new POLST form is not the same as an Out-of-Hospital Do Not Resuscitate Order authorized by Chapter 54 of the PA  PEF Code (as explained by the PA Department of Health); nor is it, alone, a Health Care Directive under Chapter 54 of the PEF Code (as explained by the Pennsylvania Medical Society).  See: PA HealthCare DecisionMaking website; "Understanding Living Wills and DNR Orders" posted by the Pennsylvania Patient Safety Authority.  However, a POLST Order could be used in conjunction with both, or either.

End-of-life decision making is a difficult, emotional subject.  On November 8, 2010, an article entitled Facing death: Questions to consider when making medical decisions, by John Luciew, was posted by the Patriot News (Harrisburg, PA).  He addressed this topic using source material from the Pennsylvania Medical Society's Family Health & Wellness website, which had not yet referenced the pending POLST form.

The law and medical privacy rules consider friends and non-married companions less than “real” family.

In order to involve them in one’s own medical decisions, specific legal declarations must be made. These are known as advance health care directives, or simply, advanced directives.

There are two main types: a health care power of attorney and a living will. Most people should consider having both. * * * 

Here are some questions to consider when making advance directives:

• Who would you trust to follow your wishes? Who can make tough choices? Who is willing and able to serve as your health care agent?
• How you would like to be cared for if you can no longer speak for yourself? What life-sustaining treatment and other care you would want at the end of your life?
• What personal wishes and values do you want your health care agent to consider when making decisions about your care?

Perhaps it is the emotional aspects that explain the Department's low-key implementation of the fairly standardized POLST form in Pennsylvania.

Now there is another mechanism through which such medical treatment preferences and directions can be memorialized and then  implemented in Pennsylvania.  It will change the way end-of-life decision making will be conducted.

Updated: 11/19/10:

My friend, Attorney Robert B. Wolf, of Pittsburgh, PA, noted my posting in one of his P&T Hot Tip Emails, which was reposted online by Smithfield Trust Company.

Bob served on the group that prepared the new PA POLST form:

I was privileged to serve on the Patient Life Sustaining Wishes Committee, and to work with leaders in Pennsylvania, such as Dr. Judy Black and Marian Kemp of Highmark and David Barnard, of the University of Pittsburgh in this effort.

He advised further:  "We are currently working on educational materials for healthcare providers, and after that for patients and families."

For a comprehensive list of currently-available POLST resources, see: Resources: Pennsylvania Physician Ordered Life-Sustaining Treatment (POLST), posted by the University of Pittsburgh's Institute on Aging.

Session on Patient/Client Health Care Decisions

On Thursday, April 22, 2010, from 4 to 6 p.m., a continuing education seminar entitled "Documenting and Implementing Patient/Client Health Care Decisions" will be presented at the Allegheny County Bar Association, in its Auditorium on the Seventh Floor of the City-County Building.

The sponsors are:

• Allegheny County Bar Association
  
• Allegheny County Medical Society
• University of Pittsburgh School of Medicine
  
• Heartland Hospice

Speakers include:

• Robert B. Wolf, Esquire, Tener, Van Kirk, Wolf & Moore, PC
• Judith S. Black, M.D., MHA, of Highmark Inc.
• Raymond C. Vogliano, Esquire, of Eckert Seamans Cherin & Mellott, LLC, as Moderator
  

This is the Agenda:

• Mr. Vogliano: 4:00 p.m .-- Introduction of Program
  

• Mr. Wolf: 4:05 - 5:00 p.m. --Legal and Medical Background of Medical Decision Making; The Impact of Act 169; The New Patient Health Care Representative;Drafting the Durable Health Care Power of Attorney & Living Will; and The ACBA/ACMS Endorsed Form (Choosing and Using the Right Form)
  

• Dr. Black: 5:00 p.m. - 5:45 p.m. --Defining the Role of the Physician Orders for Life-Sustaining Treatment (POLST); Framework for Exploring Patient Goals and Guiding POLST Decisions; and Recognizing and Promoting the Value of POLST in Assuring Patients’ Health Care Treatment Choices are Respected
  

• Panel: 5:45 p.m. - 6:00 pm -- Q & A; and Conclusion
  

The brochure notes the significance of the session in a one-sentence summary:

The program will provide continuing education credits for attorneys, physicians, nurses, nursing home administrators, and social workers in a first of its kind multidisciplinary seminar which will focus on the endorsed form of the ACBA/ACMS Health Care Power of Attorney and Living Will Form that is available to all professionals and the general public for free download from the Bar Association and Medical Society websites, and the Physician Orders for Life Sustaining Treatment or POLST form, which is a physician order that implements the treatment wishes of patients and is designed to portable from one care setting to another.

For those providers or advisers in Western Pennsylvania who have not attended a session over the past three years about the new Chapter 54 of the Probate, Estates & Fiduciaries Code, or want an update on the P.O.L.S.T. movement, this is a great opportunity. Registration is required.

PA 2010 POA Reform Report Issued by JSGC

On March 23, 2010, after an 18-month study, the Pennsylvania Joint State Government Commission issued its report, dated March, 2010:

POWERS OF ATTORNEY:
PROPOSED AMENDMENTS to the
PROBATE, ESTATES and FIDUCIARIES CODE

REPORT of the ADVISORY COMMITTEE on DECEDENTS’ ESTATES LAWS.

This report was issued today in response to the requirements of House Resolution 484, Printers No. 2753 (introduced 10/26/07), "[d]irecting the Joint State Government Commission to study the Uniform Power of Attorney Act and Pennsylvania's current power of attorney statute to determine whether any amendments should be made to Pennsylvania's current statute."

That Resolution tasked the Joint State Government Commission, acting through its Advisory Committee on Decedents' Estates Laws, as follows:

RESOLVED, That the House of Representatives direct the Joint State Government Commission to have its Advisory Committee on Decedents' Estates Laws study the Uniform Power of Attorney Act and Pennsylvania's current power of attorney statute to determine whether any amendments should be made to Pennsylvania's current statute; and be it further

RESOLVED, That the Joint State Government Commission report its recommendations to the House of Representatives within 18 months of the adoption of this resolution.

The 2010 POA Report, with attachments, is 214 pages long, and includes proposed legislation to amend Chapter 56 of the Pennsylvania Probate, Estates & Fiduciaries Code [unofficial version posted online], which statutorily authorizes and regulates powers of attorney in the Commonwealth.

The Report proffers legislation that, if adopted into law, would significantly change those actions authorized to be conducted by an agent under a power of attorney in Pennsylvania and also expand the ability of the Orphans' Court Divisions to apply remedies for unauthorized conduct by an agent acting under a power of attorney.

The introduction of H.R. 484 was discussed in detail on this Blog upon its introduction by Representative Jesse White. See: PA EE&F Law Blog posting House Reps Propose Further POA Study (11/05/07), which focused on an article by Dennis B. Roddy, entitled "Lawmaker: Tighten rules on power of attorney" published on November 2, 2007, in the Pittsburgh Post-Gazette.

Prior Post-Gazette articles highlighted a need for consideration, in Pennsylvania, of the latest model of a Uniform Power of Attorney Act (2006) (UPAA), approved by the National Conference of Commissioners on Uniform State Laws, on July 13, 2006. See: PA EE&F Law Blog postings: "Powers of Attorney" Investigated in Series (09/04/07); and Final "Courting Trouble" Article on POA Abuse (09/05/07).

The additional issues requested by HR 484 to be addressed were those mentioned in my prior posting entitled "Super Powers" Under Examination (06/05/07). In that posting, I had reflected on an article which appeared on June 4, 2007, in Forbes Magazine entitled "Taming the Superpower", by Ashlea Ebeling.

The "General Observations" section of the 2010 POA Report stated the overall findings of the JSGC-ACDEL in contrasting PEF Code Chapter 56 to the UPAA:

• The Advisory Committee recognized that although the UPAA is better organized and more thorough and specific than Pennsylvania's current power of attorney statute, many of its best principles are already incorporated into 20 Pa.C.S. Chapter 56. The Advisory Committee acknowledged a general sense of satisfaction among practitioners regarding Pennsylvania's current power of attorney statute. Accordingly, it did not favor the wholesale adoption of the uniform act, instead opting to recommend discrete amendments to 20 Pa.C.S. Chapter 56 to address specific concerns or problems encountered by practitioners and others.

• The primary concern evidenced by the court system and commentators regarding durable powers of attorney is the potential for abuse by agents seeking to enrich themselves or benefit those close to them, such as through the altering of the principal's estate plan. Nevertheless, durable powers of attorney are very helpful tools for handling the principal's financial matters as well as for planning purposes; their inexpensive and private nature contrasts with the guardianship alternative. Therefore, the Advisory Committee reasoned that any statutory amendment to 20 Pa.C.S. Chapter 56 should preserve what is best about powers of attorney in Pennsylvania: their privacy, expediency and efficiency.

• The Advisory Committee also reviewed several provisions of 20 Pa.C.S. Chapter 54 regarding health care powers of attorney since 20 Pa.C.S. § 5602(a)(8), (9) and (23) and § 5603(h) and (u.1) currently permit a principal to incorporate by reference in a power of attorney the power to (1) authorize the principal's admission to a facility and enter into agreements for the principal's care, (2) authorize medical and surgical procedures and (3) make an anatomical gift of all or part of the principal's body. The Advisory Committee observed that several amendments to 20 Pa.C.S. Chapters 54 and 56 were appropriate regarding health care decision-making. [Emphasis added]

The 2010 POA Report then summarized the proposed changes to the existing Chapter 56 regarding powers of attorney in Pennsylvania [Emphasis added]:

§ 5601. Subsection (b) is amended to provide that two witnesses are required when any power of attorney is executed, thereby changing current law, which provides that two witnesses are only required when the power of attorney is executed by mark or by another individual. The amendment makes the execution of a power of attorney under Chapter 56 consistent with the execution of a health care power of attorney under Chapter 54. However, an agent appointed under a Chapter 56 power of attorney may not be a witness. Notarization, where the specific circumstances permit, is good practice but is not required. Subsection (b) is also amended to specify that a power of attorney “shall be dated and signed by the principal,” thereby replacing “signed and dated by the principal.

Subsections (d) and (e) are amended to provide statutory language regarding the preservation of the estate plan of the principal, including the effect of intestacy if the principal does not have a will.

Subsection (e.3) is new and provides that an agent and a recipient of a gift or other financial benefit, during the principal's life or at the principal's death, arising from the action of the agent is liable as equity and justice may require to the extent that the court determines that the action of the agent was inconsistent with (1) prudent estate planning or financial management for the principal or (2) the known or probable intent of the principal with respect to the disposition of the principal's property. An agent who in good faith exercises reasonable caution and prudence shall not be personally liable.

§ 5601.2. The title of § 5601.2 and subsection (a) are amended to specify that, similar to the gift provisions, a principal may empower an agent to make changes to the principal's estate plan only in specific circumstances. A power to make a gift or make changes to the principal's estate plan may not be inferred from a grant of another power or from a general grant of authority to do anything that the principal could do, except to the extent that a principal expressly grants the agent the power to provide for personal and family maintenance.

Subsection (b) is amended to clarify that limited gifts authorized in compliance with this subsection do not require court approval.

Subsection (c) is amended to change the title from “unlimited gifts” to “other gifts specifically authorized and not requiring court approval” and to clarify that other gifts specifically authorized in compliance with this subsection do not require court approval. The amendments permit a principal to authorize an agent to make a gift, which is not a limited gift under subsection (b), only by specifically identifying the donee and the gifted property or cash amounts. In addition, subsection (c)(1) specifies that the phrase “any donee” or other language showing a similar intent is not permitted.

Subsection (c.1) is new and provides that an agent may act without court approval if the agent's action is otherwise authorized by the power of attorney (e.g., to make a beneficiary designation or create a joint account) and maintains and is consistent with the preservation of the principal's estate plan, including the effect of intestacy if the principal has no will. An action may not be taken if the interest of any beneficiary under the principal's existing estate plan, including an intestacy if the principal has no will, is prejudiced thereby.

Subsection (c.2) is new and provides that an agent may make gifts or change the principal's estate plan (such as by creating or changing rights of survivorship or a beneficiary designation; by creating an inter vivos trust or amending, revoking or terminating an existing trust; or by waiving the principal's right to be a beneficiary of a joint and survivor annuity) only if the power of attorney expressly grants the agent the authority and the court approves the agent's action, in the manner set forth in new subsection (g), after finding that the action is consistent with (1) prudent estate planning or financial management and (2) the known or probable intent of the principal with respect to the disposition of the principal's property. If an agent complies with the grant of authority for gifts, the agent does not need to follow the procedures under Chapter 55 (incapacitated persons) so as to implement estate planning changes. Conversely, if the agent does not so comply, a guardianship proceeding would need to occur.

Subsection (d)(1), in defining the nature of a limited gift, is amended to add that the agent may make a gift to each donee to a tuition savings account or prepaid tuition plan.

Subsection (e), concerning equity and justice with respect to gifts, is repealed and replaced by § 5601(e.3) to make the concept of equity and justice applicable to all actions of an agent under Chapter 56.

Subsection (g) is new and provides for procedures concerning court proceedings for subsection (c.2).

§ 5602. Subsection (a) is amended to repeal paragraph (8) (“To authorize my admission to a medical, nursing, residential or similar facility and to enter into agreements for my care”), paragraph (9) (“To authorize medical and surgical procedures”) and paragraph (23) (“To make an anatomical gift of all or part of my body”). The substance of these paragraphs is being moved to Chapter 54.

Subsection (a) is amended to broaden paragraph (17) to include annuity transactions.

Subsection (a) is amended to add new paragraphs (24) (“To operate a business or entity”) and (25) (“To provide for personal and family maintenance”).

Subsection (c) is amended to change the reference from “executed copy of the power of attorney” to “originally executed power of attorney.”

Subsection (d) is new and specifies that, except for the purpose of filing at the courthouse, a photocopy or electronically transmitted copy of an originally executed power of attorney has the same effect as the original.

§ 5603. Subsection (a)(2)(ii), regarding gift splitting, is amended to (1) clarify that an agent can make a gift of the principal's assets up to twice the amount of the annual exclusion if the principal's spouse indicates a willingness to “split” gifts and (2) add a provision that limited gifts to a “family unit” (which is a child and a child's descendants) can be equalized even if this means exceeding the available annual exclusions and thus using a portion of the principal's cumulative lifetime gift exemption or paying gift tax if there is an insufficient amount of such exemption remaining.

Subsections (d) (power to claim an elective share) and (e) (power to disclaim any interest in property) are amended to eliminate as unnecessary the references to adjudication, since 20 Pa.C.S. § 102 defines an incapacitated person as “a person determined to be an incapacitated person under the provisions of Chapter 55 (relating to incapacitated person).” The determination under Chapter 55 necessarily involves an adjudication.

Subsection (h) (power to authorize admission to medical facility and power to authorize medical procedures) is repealed, in light of Chapter 54.

Subsection (k)(4) (power to engage in stock, bond and other securities transactions) is amended to specify that the agent may also join in any consolidation, dissolution or liquidation, thereby making the provision more parallel to 20 Pa.C.S. § 7780.6(a)(13), concerning the illustrative powers of a trustee under the Pennsylvania Uniform Trust Act.

Subsection (p) (power to engage in insurance transactions) is amended to include annuity transactions. Paragraph (3) is amended to give an agent the authority to change a beneficiary designation but only as permitted under § 5601.2(c.1) and (c.2), which concerns actions that change an estate plan and that may or may not require court approval.

Subsection (q) (power to engage in retirement plan transactions) is amended to give an agent the authority to change a beneficiary designation but only as permitted under § 5601.2(c.1) and (c.2), which concerns actions that change an estate plan and that may or may not require court approval.

Subsection (u.1) (power to make anatomical gift) is repealed, in light of Chapter 54.

Subsection (u.2) is new and defines the power to operate a business or entity.

Subsection (u.3) is new and defines the power to provide for personal and family maintenance.

§ 5604. Subsection (c)(1) is amended to delete the word “adjudicated” (with respect to an incapacitated principal) in the first sentence and to delete the second sentence, which provides that the guardian has the same power to revoke or amend the power of attorney that the principal would have if the principal were not incapacitated.

Subsection (c)(3) is new and requires the court to determine whether, and the extent to which, the incapacitated person's durable power of attorney remains in effect and include that determination in its guardianship order.

Subsection (d.1) is new and specifies that except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, the principal's guardian, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, or (upon the death of the principal) the personal representative or successor in interest of the principal's estate.

§ 5610. A third sentence is added clarifying that the court may assess the costs of the accounting proceeding as it deems appropriate, including the costs of preparing and filing the account.

§ 5612. This new section authorizes the court to order an investigation, appoint a guardian ad litem, make a referral to an appropriate agency or take any other appropriate action regarding allegations of financial abuse or mismanagement against a principal by his or her agent under a power of attorney. Any such order is made upon petition by an appropriate party and a reasonable showing of the financial abuse or mismanagement. However, the court may consider information not only from the formal petition but from other sources (such as from a report by a social service agency or from other communications).

§ 5613. This new section provides that venue of any matter pertaining to the exercise of a power by an agent acting under a power of attorney is in the county where the principal is domiciled, a resident or residing in a long-term care facility. A court may decline to exercise jurisdiction if it determines that a court of another county or state is a more appropriate forum, in which case the court shall either dismiss the proceeding or stay the proceeding upon the condition that a proceeding be promptly commenced in another county or state. The court may impose other conditions as well. This new section provides the court with maximum flexibility regarding the relevant and important factors to be used in determining whether to exercise jurisdiction.

§ 5614. This new section supplements Chapter 56 with the common law and principles of equity.

The 2010 POA Report also contains the following proposed amendments to 20 Pa.C.S. Chapter 54 (health care):

§ 5422. The definition of “health care decision” is amended to include decisions regarding (1) an individual's admission to a facility or entering into agreements for the individual's care and (2) after the individual's death, making anatomical gifts, disposing of the remains or consenting to autopsies.

§ 5456. Subsection (a) is amended to specify that the health care agent's power includes the power to authorize admission to a facility or enter into agreements for the principal's care.

§ 5460. Subsection (a) is amended to repeal the last sentence, which provides that the guardian has the same power to revoke or amend the appointment of a health care agent that the principal would have if the principal were not incapacitated, but the guardian may not revoke or amend other instructions in an advance health directive absent judicial authorization. Subsection (a) is also amended to add statutory language providing that in its guardianship order and determination of a person's incapacity, the court shall determine the extent to which the health care agent's authority to act remains in effect.

I was privileged to be a member of the drafting committee (the "Subcommittee on Guardianships and Powers of Attorney"), chaired by John J. Lombard, Jr., Esq., Chair, which included: William R. Cooper, Esq.; Jay C. Glickman, Esq.; Neil E. Hendershot, Esq.; The Honorable Anne E. Lazarus; James F. Mannion, Esq.; John F. Meck, Esq.; Michael J. Mullaugh, Esq.; The Honorable Paula Francisco Ott; William Campbell Ries, Esq. and Robert B. Wolf, Esq. In addition, The Honorable Calvin S. Drayer, Jr. and The Honorable Stanley R. Ott were invited to participate in the subcommittee's review and discussion process.

Update: 03/26/10:

On Friday, March 26, 2010, the Pittsburgh Post-Gazette published an article by Dennis B. Roddy entitled Reforms aimed at power-of-attorney abuses: State commission proposes changes to curb cheating, which noted issuance of the 2010 POA Report and a legislator's intention to introduce legislation based upon its recommendations:

A Pennsylvania government study commission has proposed legal reforms to curtail power-of-attorney abuses that have cheated the elderly, the disabled and their heirs.

The 222-page report includes draft legislation and is the result of an 18-month study ordered by the state House after a 2007 series of articles in the Post-Gazette. The articles revealed gaps in the law that had allowed attorneys and family members to divert savings and pension benefits to their advantage.

"The majority of powers of attorney work very well, but when they don't work they cause tremendous problems," said Superior Court Judge Anne Lazarus, a member of the advisory committee on estate law that proposed the reforms to the Joint State Government Commission.

The study was ordered after the House passed a resolution by State Rep. Jesse White, D-Washington County, who said he was incensed by reports of POA abuses detailed in the newspaper during 2007.

"I will almost certainly be introducing some sort of legislation for comprehensive power of attorney reform," Mr. White said. Initially, Mr. White and several others had suggested the commission explore adopting a nationwide standard called the Uniform Power of Attorney Act.

The committee did a side-by-side comparison of Pennsylvania law with the proposed uniform act.

"We found that our structure was sound and that we addressed most issues already," said Neil Hendershot, a Harrisburg estate lawyer and expert on POA.

Instead, the committee opted for alterations of the current Pennsylvania law. * * *