Understanding the Role and Importance of a Power of Attorney in Pennsylvania

When discussing estate planning with clients, many believe the conversation begins and ends with the creation of a will. While the drafting of a will is a critically important component of a proper estate plan, designating a trustworthy power of attorney cannot be overlooked or treated lightly.

Simply stated, a Power of Attorney (“POA”) is an agent for the principal (the individual naming the POA) who is charged with the obligation of making proper financial and property decisions for said principal. The agent assumes the responsibility of acting on behalf of the principal in the event that the principal is no longer able to act on his or her own behalf, or is otherwise unavailable to conduct a transaction (such as a principal being out of the state or country on the date of settlement for the sale of real estate).

An agent’s responsibilities could include, among many others tasks, conducting financial transactions on the principal’s behalf, paying bills, and maintaining bank accounts. The individual designated as POA need not be a relative, but should certainly be someone the principal trusts in carrying out dealings on his or her behalf. The appointing of a Power of Attorney is not a decision to be taken lightly, and should be based solely on the principal’s best interests.

There are several types of powers of attorney, including a general power of attorney, a limited power of attorney, and a durable power of attorney. A general power of attorney grants authority to an agent to conduct transactions on the principal’s behalf (such as banking and real estate), enter into contracts, and exercise the principal’s rights related to stock. A limited power of attorney is transaction specific, meaning the agent only has the right to take action on behalf of the principal in situations specified in the document (such as the sale of real estate or personal property). Finally, there is the durable power of attorney. This final type of POA authorizes an agent to take action prior to and following a disabling event to the principal. The durable power of attorney differs from the general power of attorney in that the authority of a general power of attorney is no longer effective once the agent is deemed incapacitated. Because a durable power of attorney remains effective even after a disability, its popularity has increased over the years.

There have been recently enacted changes to the laws governing Powers of Attorney which went into effect fully on January 1, 2015. The full record of legislation is available at here.

Whether you do not have a Power of Attorney OR you have one which was drafted prior to January 1, 2015, the change to the laws regarding Powers of Attorney in Pennsylvania warrant considering creating or updating this document.

If you have any questions about the information in this article, your estate plan generally, or are interested in getting more specific information regarding the impact of the changes to the laws governing Powers of Attorney cited above, the attorneys at Howland Hess O’Connell are available to help you today. If you haven’t reviewed your estate plan since January 1, 2015, or don’t have one, it is in your best interest to arrange a time with an attorney to consider the options available to you.

If any of the above information applies to you, call for a free consultation at (215)-947-6240 or contact us online to schedule a meeting.


Legal Disclaimer
: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.

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Ripple of Supreme Court DUI Decision Causes Waves in Pennsylvania

Ripple of Supreme Court DUI Decision Causes Waves in Pennsylvania

Following a June, 2016 ruling by the United States Supreme Court in Birchfield v. North Dakota, DUI prosecutions in Pennsylvania are undergoing significant modifications. In Birchfield, the U.S. Supreme Court made two considerable declarations. The Court first ruled that the Fourth Amendment permits police officers to conduct warrantless breath tests incident to an arrest for drunk driving. However, and much more significantly, the Supreme Court held that the Fourth Amendment does not permit a blood test incident to arrest without a search warrant. The Court’s rationale is rather straightforward: a blood draw in a DUI case is so intrusive that the search warrant is required.

The impact of this ruling is significant, as the Supreme Court has now directed that a search warrant is presumed required if the police want to take the blood of someone suspected of driving under the influence. This means drivers now have a right to refuse to take a blood test (not breath test) absent a validly issued search warrant, and their refusal to take a blood test cannot be the basis for the imposition of criminal penalties. Furthermore, the “implied-consent” laws in Pennsylvania no longer allow police to draw a person’s blood based solely on the fact that they were arrested while driving and suspected of DUI.

While there is some ambiguity in terms of the applicability of the Supreme Court’s ruling and how it is applied in Pennsylvania, as PA does not treat a refusal as a separate crime, one thing is clear: imposing criminal penalties for refusing a warrantless DUI blood test is unconstitutional.

It is worth noting here that, following the Supreme Court’s June 23rd ruling, the Pennsylvania Department of Transportation revised its DL-26 warnings which police read to motorists being asked to submit to a blood alcohol test (blood, urine, or breath) by eliminating all references to criminal penalties for refusal. It is not yet immediately clear the effect Birchfield will have on PennDOT’s ability to issue a one-year license suspension based on a driver’s refusal to submit to a blood test.

It is important to remember that this ruling only directly implicates an individual’s right to refuse to submit to a blood test without a search warrant. Alternatively, and based on the lack of physical intrusion and minimal inconvenience involved, the Supreme Court ruled that search warrants are not required for a breath test. Therefore, officers of this Commonwealth still have the right to demand you submit to a breath test (aka, “breathalyzer”) and do not need to first obtain a search warrant to gain compliance.

It is also important to highlight that even if you’ve been arrested for DUI and informed that refusal to consent to a blood draw would lead to increased penalties, this ruling is not necessarily a “get-out-of-jail-free” card. The State still has the ability to demonstrate general impairment based on the arresting officer’s testimony and other available evidence, and since Pennsylvania does not have a separate crime outlawing refusal to consent to a blood test the impact of Birchfield will (most likely) be felt strongest in the sentencing phase. That being said, the Supreme Court’s rulings in Birchfield will impact the State’s prosecution of DUIs where the only evidence of impairment is from an unconstitutional blood draw.

Whether it is in the conviction or sentencing stage, Birchfield provides significant ammunition to defense attorneys practicing in the Commonwealth of Pennsylvania arguing for suppression of blood-alcohol content evidence and reduced penalties. If you’ve been arrested for driving under the influence in Pennsylvania, the guidance of an attorney skilled in DUI defense is critical. The Criminal Defense Attorneys at Howland Hess O’Connell have extensive experience and knowledge in assisting clients through these matters. If any of the above information applies to you, call for a free consultation at (215)-947-6240 or contact us online to schedule a meeting.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.