Powers of Attorney — Advanced Issues

Beyond the basics of execution and bank acceptance, there are several POA issues that catch families off guard — often at the worst possible moment. These are the problems that don't show up until the agent actually needs to use the document.

The "Springing" POA Trap

Pennsylvania allows "springing" powers of attorney — POAs that take effect only when the principal becomes incapacitated, rather than immediately upon signing. On paper, this sounds appealing. People don't want to give someone power over their finances right now; they want a safety net for later. The problem is the "later" part.

A springing POA requires someone to certify that the principal is incapacitated before the agent can act. Under § 5604(a), this typically means a physician's written certification. In an emergency — Mom had a stroke, the mortgage is due Friday, the insurance company needs a signature — the agent has to get a doctor to examine Mom, write a letter confirming incapacity, and then present both the POA and the physician's certification to the bank. Banks that already resist standard POAs are even more skeptical of springing POAs with physician certifications they've never seen before.

Meanwhile, the bills keep coming.

An immediately effective durable POA avoids all of this. The agent can act the moment the document is signed — but as a practical matter, the agent can't do anything the principal doesn't know about, because the principal is competent and monitoring their own accounts. The "risk" of an immediately effective POA is the same risk you accept when you add a joint signer to your bank account or name a successor trustee on your trust. It's a question of trust in the person you've chosen — and if you don't trust them enough to hold an immediately effective POA, you shouldn't name them as agent at all.

We draft immediately effective durable POAs as the default. If a client specifically wants a springing provision after being advised of the practical problems, we'll include it — but we make sure the triggering mechanism is as streamlined as possible and that the physician certification language matches what institutions are likely to accept.

POA and Real Estate — The Recording Requirement

If your agent needs to sell, mortgage, or transfer real estate using the POA, the original POA (or a certified copy) must be recorded in the county Recorder of Deeds office where the property is located before or at the time of the transaction. This is a requirement that most people — and a surprising number of attorneys — overlook until the day of closing.

The title company will require proof that the POA is recorded. If it isn't, the closing gets delayed while someone runs to the courthouse. If the property is in a different county than where the principal lives, the POA must be recorded in that county. If the principal owns property in multiple counties, the POA may need to be recorded in each one.

Recording also creates a public record — which means anyone searching the property records can see the POA, the agent's name, and the powers granted. For most families this is irrelevant, but it's worth knowing. The recording fee in Bucks County is nominal.

The other real estate wrinkle: if the agent is selling the principal's homestead, the agent should confirm that the POA specifically authorizes the sale of real property. A general grant of authority includes real estate transactions under § 5602, but title companies are conservative — they want to see explicit language. If the principal has a spouse, the spouse may need to join in the deed to release dower/curtesy interests (although Pennsylvania abolished dower and curtesy, title companies still occasionally raise this).