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§ 5601.4. Authority that requires specific and general grant of authority

Purdon's Pennsylvania Statutes and Consolidated StatutesTitle 20 Pa.C.S.A. Decedents, Estates and FiduciariesEffective: January 19, 2021

Purdon's Pennsylvania Statutes and Consolidated Statutes
Title 20 Pa.C.S.A. Decedents, Estates and Fiduciaries (Refs & Annos)
Chapter 56. Powers of Attorney (Refs & Annos)
Effective: January 19, 2021
20 Pa.C.S.A. § 5601.4
§ 5601.4. Authority that requires specific and general grant of authority
<Section 4 of 2020, July 23, P.L. 684, No. 72, effective in 180 days [Jan. 19, 2021], provides that the addition of 20 Pa.C.S. § 5601.4(a)(9) by that Act shall apply to a power of attorney executed on or after Jan. 19, 2021.>
(a) General rule.--An agent under a power of attorney may do the following on behalf of the principal or with the principal's property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:
(1) Create, amend, revoke or terminate an inter vivos trust other than as permitted under section 5602(a)(2), (3) and (7) (relating to form of power of attorney).
(2) Make a gift.
(3) Create or change rights of survivorship.
(4) Create or change a beneficiary designation.
(5) Delegate authority granted under the power of attorney.
(6) Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan.
(7) Exercise fiduciary powers that the principal has authority to delegate.
(8) Disclaim property, including a power of appointment.
(9) Access the electronic communications and digital assets of the principal. As used in this paragraph, the following words and phrases shall have the meanings given to them in this paragraph unless the context clearly indicates otherwise:
“Digital asset.” As defined in section 3902 (relating to definitions).
“Electronic communication.” As defined in section 3902.
(b) Limitation.--Notwithstanding a grant of authority to do an act described in subsection (a), unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse or descendant of the principal may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal's property, whether by gift, right of survivorship, beneficiary designation, disclaimer or otherwise.
(c) Scope of authority.--Subject to subsections (a), (b), (d), (d.1) and (e), if a power of attorney grants to an agent authority to do all acts that a principal is authorized to perform, the agent has all of the powers which may be incorporated by reference pursuant to section 5602(a).
(d) Gifts.--
(1) Unless the power of attorney otherwise provides, the power to make limited gifts or other language in a power of attorney granting general authority with respect to gifts authorizes the agent only to:
(i) Make outright to or for the benefit of a person, a gift of any of the principal's property, including by the exercise of a presently exercisable general power of appointment held by the principal:
(A) in an amount per donee not to exceed the annual dollar limits of the Federal gift tax exclusion under section 2503(b) of the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § 2503(b)), without regard to whether the Federal gift tax exclusion applies to the gift; or
(B) if the principal's spouse agrees to consent to a split gift pursuant to section 2513 of the Internal Revenue Code of 1986 (26 U.S.C. § 2513), in an amount per donee not to exceed twice the annual Federal gift tax exclusion limit.
(ii) Consent, pursuant to section 2513 of the Internal Revenue Code of 1986, to the splitting of a gift made by the principal's spouse in an amount per donee not to exceed the aggregate annual gift tax exclusions for both spouses.
(2) An agent may make a gift of the principal's property only as the agent determines is consistent with the principal's objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal's best interest based on all relevant factors, including:
(i) The value and nature of the principal's property.
(ii) The principal's foreseeable obligations and need for maintenance.
(iii) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer and gift taxes.
(iv) Eligibility for a benefit, program or assistance under a statute or regulation.
(v) The principal's personal history of making or joining in making gifts.
(3) As used in this subsection, the phrase “a gift for the benefit of a person” includes a gift to a trust, an account under Chapter 53 (relating to Pennsylvania Uniform Transfers to Minors Act) and a tuition savings account or prepaid tuition plan as defined under section 529 of the Internal Revenue Code of 1986 (26 U.S.C. § 529).
(d.1) Disclaimers.--
(1) Unless the power of attorney otherwise provides, the grant of the power to disclaim any interest in property or a grant of general authority with disclaimers authorizes the agent to release or disclaim any interest in property on behalf of the principal in accordance with Chapter 621 (relating to disclaimers) or section 6103.12 (relating to release of powers and interests and disclaimer of powers), provided that any disclaimer under Chapter 62 shall be in accordance with the provisions of section 6202 (relating to disclaimers by fiduciaries or agents) in the case of a principal who is an incapacitated person at the time of the execution of the disclaimer.
(2) An agent may make a disclaimer as the agent determines is consistent with the principal's objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal's best interest based on all relevant factors, including:
(i) The value and nature of the principal's property.
(ii) The principal's foreseeable obligations and need for maintenance.
(iii) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer and gift taxes.
(iv) Eligibility for a benefit, program or assistance under a statute or regulation.
(v) The principal's personal history of making or joining in making gifts.
(e) Similar or overlapping subjects.--Subject to subsections (a), (b), (d) and (d.1), if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.
(f) Property.--Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in this State and whether or not the authority is exercised or the power of attorney is executed in this State.
(g) Legal effect of agent's actions.--An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal's successors in interest as if the principal had performed the act.

Credits

2014, July 2, P.L. 855, No. 95, § 3, effective Jan. 1, 2015. Amended 2016, July 8, P.L. 497, No. 79, § 6.1, effective Jan. 1, 2017; 2020, July 23, P.L. 684, No. 72, § 3, effective in 180 days [Jan. 19, 2021].

Footnotes

20 Pa.C.S.A. § 6201 et seq.
20 Pa.C.S.A. § 6103.1.
20 Pa.C.S.A. § 5601.4, PA ST 20 Pa.C.S.A. § 5601.4
Current through Act 13 of the 2024 Regular Session. Some statute sections may be more current, see credits for details.
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