Why Should I Set up a Power of Attorney during the Coronavirus?
In normal times, Powers of Attorney are part of our standard estate planning documents, along with a Will and Advance Health Care Directives. A recent Reuters article noted the importance of these very documents to help protect you and your family. So, why during the coronavirus pandemic should you set up a Power of Attorney?
What is a Power of Attorney?
Powers of Attorney are written documents which authorize another person to act on your behalf. The person who writes the Power of Attorney is known as the Principal and the one appointed is the Agent.
Two very powerful and important Powers of Attorney documents are financial and health care.
Financial Power of Attorney
The Financial Power of Attorney names an Agent to make and execute financial decisions and transactions on your behalf such as signing checks, selling your house or other real estate and dealing with your investments.
Without the authority granted in a Financial Power of Attorney or other documents, no one, including your spouse, can act on your behalf and legally sign your name. The alternative is to present a doctor’s testimony that you are incapacitated and request the Court to appoint a Guardian of the Estate – outside of a global pandemic, this is a long and costly process.
Health Care Power of Attorney
The Health Care Power of Attorney names an Agent to make decisions about your care by medical providers when you cannot do so on your own. For example, what treatment and medications you are given and in what facility you are housed.
Setting up a Power of Attorney during the coronavirus pandemic
Under the PA governor order, law firm physical offices are closed. While some states may allow for e-signatures and virtual witnesses, Pennsylvania is not one of these states.
Pursuant to Section 5601(b) of the PEF Code, a Pennsylvania Power of Attorney must be signed by the individual (known as the “Principal”), two witnesses, and a notary. The witnesses and notary cannot be anyone named within the Power of Attorney document as the Agent. An individual cannot be both a witness and the notary.
An alternative is an “Advance Health Care Directive,” which can be a Health Care Power of Attorney, a Living Will, or a combination of both. Pursuant to Sections 5442 and 5452 of the PEF Code, a Pennsylvania Advance Health Care Directive must be signed by the Principal and two witnesses. Unlike the requirements for a Power of Attorney, a notary is not necessary and there is no prohibition against any individual named in the document as an Agent to sign the document as a witness.
Gross McGinley has taken the steps to safely help you with this process during the coronavirus outbreak, with remote meetings, document preparation and signing all with proper strict social distancing. We will continue to work with our clients to modify their documents so that they may sign as many of their documents as is reasonably possible during this pandemic.
Stuart T. Shmookler is a member of Gross McGinley’s Wills, Trusts, & Estates Group. His practice focuses on real estate, estate planning, elder law, and trusts, as well as providing counsel to small and family-owned businesses.