Power of Attorney

Disclaimer: The following materials are intended to be informational and not for the purpose of providing legal counsel. Please consult your attorney for advice and guidance regarding legal matters. 

What is Power of Attorney?

It is a common belief that a Power Of Attorney (POA) agent can act on the behalf of the principle/loved one that has passed away.  The Power of Attorney allows the agent to act on the behalf of the principle while they are alive, once the principle has passed away, the Power Of Attorney expires.

There are two ways in the state of Pennsylvania to designate an agent to direct the method of disposition: One, is to write your disposition directive into your Will.  The other is to elect an agent with a "Designation of Agent for Body Disposition" document.  In order for the Will to be used to direct disposition, the Will must be executed.  The Designation of Agent for Body Disposition becomes a legal document once it is completed, signed, notarized, and witnessed by two individuals.  See below for descriptions of the different types of Power of Attorney, POA Expiration, and the Designation of Agent for Body Disposition document.

General Power of Attorney

A general power of attorney gives broad powers to a person (agent) to act on your behalf. These powers can include handling personal/ business finances and transactions, buying life insurance, settling claims, operating business, making gifts, and employing professional help on your behalf. General power of attorney is a valuable tool if you will be out of the country and need someone to handle certain matters, or when you are physically or mentally incapable of managing your affairs.

Special Power of Attorney

You can specify exactly what powers an agent has by signing a special power of attorney. This is often used when one cannot handle certain affairs due to other commitments or health reasons. Selling property (personal and real), managing real estate, collecting debts, and handling business transactions are some of the common reasons a special power of attorney document is created.

Health Care Power of Attorney

A health care power of attorney grants the agent authority to make medical decisions for you if you are unconscious, mentally incompetent, or otherwise unable to make decisions on your own. While not the same thing as a living will, many states allow you to include your preference about being kept on life support.

Durable Power of Attorney

A Durable Power of Attorney keeps the POA in effect even if you should become mentally incompetent due to illness or accident. This is simply a general, special, or health care POA that has a durability provision to keep the current Power of Attorney in effect.  Specify that the Power of Attorney cannot go into effect until a licensed, practicing doctor certifies you as mentally incompetent. You may want to name a specific doctor who you trust to determine your competency, or require that two licensed physicians agree on your mental state.

Power of Attorney Expiration

By the laws of all states, a power of attorney expires on the death of the principal. More specifically, when an agent learns of the death of a POA principle, he may no longer act as an agent in the principal's place.

Designation of Agent for Body Disposition

There are laws permitting you to name a particular person to control your funeral and the method of disposition of your body.  While this may seem unnecessary to most people, there are a number of situations where it is a wise decision to create an Agent for Body Disposition. 

If you are:

  • separated but not divorced
  • not married to your significant other or in a same sex relationship where state laws do not allow legal recognition of the union.
  • estranged from next-of-kin
  • aware that there is a possibility that your next of kin won’t agree with your wishes or with each other

 Pennsylvania Statute, (Title 20, Chapter 3, Section 305 the Right to dispose of a decedent’s remains), gives you the right to make a Designation of Agent for Body Disposition or a "statement of contrary intent."  This names a person to control the method of disposition that will override the next-of-kin's usual authority.

Without this documentation, the right to control the method of disposition shall be in the following hierarchy: 1) spouse,  2) children,  3) parents,  4) brothers, sisters or their children,  5) grandparents,        6) uncles, aunts and their children, and grandchildren.   As long as the Designation is properly completed, signed, witnessed and notarized, it is a legally binding document and will override typical Next of Kin hierarchy and authority