On October 4, 2016, Governor Wolf signed into law House Bill 665 (Act 103 of 2016) which clarified certain sections of the Pennsylvania power of attorney law that went in effect on January 2, 2015 (Act 95 of 2014). The changes were aimed at correcting issues with commercial powers of attorney. All changes in Act 103 took effect on October 4, 2016 and apply retroactively to January 2, 2015 (i.e., the effective date of Act 95).
1. Commercial Powers of Attorney are not Subject to the Notarization or Acknowledgement Requirement
Under Act 95, all powers of attorney executed after January 1, 2015 had to be witnessed by two individuals and be notarized or acknowledged. While commercial powers of attorney were not required to obtain two witnesses, they were subject to the notarization or acknowledgement requirement. The notarization/acknowledgement requirement was a cumbersome requirement in the commercial setting.
Act 103 now excludes commercial powers of attorney from the notarization or acknowledgement requirement (unless the document is being recorded).
2. Agent Duties not Applicable to Commercial Powers of Attorney
Act 95 made agents of all powers of attorney subject to certain duties. One of those duties required the agent to act in the best interest of the principal. This requirement was difficult for agents under commercial powers of attorney where the agent was authorized to enforce a security agreement or execute a confession of judgment against the principal, particularly in a loan or lease situation. In order to comply with the law, banks and attorneys inserted lengthy waiver language into the documents.
Act 103 now exempts agents under commercial powers of attorney from the standard agent duties.
3. Expanded Definition of Commercial Powers of Attorney
Under Act 95, the only powers of attorney for entities (i.e., corporations, LLCs, partnerships, etc.) that were exempt from certain statutory requirements were powers of attorney that were “contained in the governing documents” of an entity or powers of attorney in a voting proxy. This definition was limiting and not in-line with other states.
Act 103 expands the definition of commercial powers of attorney that are exempt from the statutory requirements to also include any power of attorney that is “authorized by the law that governs the internal affairs of a legal entity” or “which a director, shareholder, partner, member or manager authorizes others to do things on behalf of the entity.”
4. Attorneys may Acknowledge Powers of Attorney
Under Act 95 it was not clear if an attorney could acknowledge a power of attorney.
Act 103 confirms that an attorney may acknowledge the execution of a power of attorney provided the attorney was not a witness to the power of attorney and such acknowledgement was in a manner that is authorized by law.
The changes in Act 103 correct the issues that Act 95 created for powers of attorney used in commercial transactions and provide some much needed clarity for attorneys and commercial institutions. If you have questions or would like additional information regarding the impact of Act 103 on commercial powers of attorney, please contact David Workman, David Mandel or Daniel Levine.