Topics on this page:

• Background
• Statutory Powers of Attorney
• General v. Limited Powers of Attorney
• Who May Create a Power of Attorney
• Written Powers of Attorney Are Assumed to be Durable
• Executing a Power of Attorney
• When Power of Attorney Goes into Effect?
• Powers and Duties of Person with Power of Attorney
• Medical Powers of Attorney (Advanced Directives)
• Ending the Power of Attorney
• Copies

 

Background

A “power of attorney” is a document that gives someone legal authority to act for another person. It allows you to assign a person to manage your affairs if you are unable to do so. 

The person who grants the power of attorney is known as the “principal” and the person given the power is known as the “agent” or “attorney-in-fact.” The power of attorney defines the limits of the power that the principal is giving to the agent. The power of attorney does not take away the principal’s power to act; it only gives the agent the power to act for the principal.

The Maryland legislature passed a Power of Attorney Act in 2010. The act provides two statutory forms that make it easier for people to grant powers to others to act for them on financial and other matters. The act is called the Maryland General and Limited Power of Attorney Act; it is in MD Code Estates & Trusts, Title 17.

Read the Law: Md. Code, Estates & Trusts §§ 17-101 - 17-204

Alternatives to Guardianship: Powers of Attorney

 

Statutory Powers of Attorney

Any writing or other record that grants authority to a person to act for another person will be read as a power of attorney.  A power of attorney need not say “power of attorney” on it.  

Read the Law: Md. Code, Estates & Trusts § 17-101

The Maryland General and Limited Power of Attorney Act created a specific kind of power of attorney called a “statutory form power of attorney.” There are several templates provided in the following links: Md. Code, Estates & Trusts §§ 17-101, 17-202, 17-203, 17-204

If a person refuses to honor a statutory power of attorney, that person may be held liable for the attorney's fees incurred to get a court order that requires them to abide by the power of attorney.   

Read the Law: Md. Code, Estates & Trusts §17-104

 

General v. Limited Powers of Attorney

A power of attorney can be either general or limited.

A general power of attorney gives a person the power and authority to act for the principal in all business and personal matters.

• This usually includes opening and closing bank accounts, buying and selling stock, accessing safe deposit boxes, taking out loans, purchasing real estate, suing, and entering into a contract in the name of the principal.

A limited power of attorney grants to the person only the powers defined in the document.

• Often used to give agents the power to act in financial matters, to manage real estate, or to make healthcare decisions for the principal when the principal loses the ability to make decisions for himself.
• Medical powers of attorney are called advance directives.
• May be limited either by the scope of powers that the agent receives or by time. 

Note:  Powers should be as specifically defined as possible. This helps to protect the principal and make it more likely that the people and businesses will honor the power of attorney.

 

Who May Create a Power of Attorney

To create a power of attorney, an individual must:

• Be at least 18 years old;
• Intend to give the power to the person designated in the document; and
• Be mentally competent, which means able to understand
  • the document;
  • which powers are being granted; AND
  • which property is affected by the power granted.

 

Written Powers of Attorney Are Assumed to be Durable

In Maryland, a written power of attorney is assumed to be a ”durable” power of attorney unless the document says that it is not.

• A conventional power of attorney ends when the principal becomes too disabled to make decisions for himself. 
• But a durable power of attorney does not end when the principal becomes disabled. 

Read the Law: Md. Code, Estates & Trusts § 17-105

 

Executing a Power of Attorney

A power of attorney executed on or after October 1, 2010 must be:

• In writing; AND
• Signed by the principal (or some other person, in the physical presence of the principal, and at the express direction of the principal); AND
• Acknowledged by the principal in the physical or electronic presence of a notary public; AND
• Signed by two or more adult witnesses who sign the power of attorney
  • in the physical presence of the principal and each other OR
  • in the electronic presence of the principal and each other OR
  • any combination of physical or electronic presence.

In addition to the requirements listed above, for an electronic power of attorney or a remotely witnessed power of attorney:

• At the time the principal and witnesses sign the power of attorney, the principal and all witnesses must be in the physical presence or electronic presence of one another and a supervising attorney (the supervising attorney may be one of the witnesses); AND
• At the time the principal signs the power of attorney, the principal must be a resident of Maryland or physically located in Maryland; AND
• Each witness who is in the electronic presence of the principal when the witness attests and signs the power of attorney or provides an electronic signature on the power of attorney, must be a resident of the United States and physically located in the United States at the time the witness attests and signs the power of attorney; AND
• The principal and witnesses must sign the same power attorney (or counterpart): AND
• The supervising attorney must created a certified power of attorney. The statute has very specific requirements for this certified power of attorney.

NOTE: If the power of attorney was executed and notarized according to Executive Orders 20.04.10.01 and 20.03.30.04, which authorized remote witnessing, notarization, and electronic signing of certain documents, during the time that the Executive Orders were in effect, then the power attorney will be considered as complying with the statute.

Read the law: Md. Code, Estates & Trusts § 17-110

Currently, the notary public can serve as one of the two adult witnesses and may use communication technology for that purpose. The Maryland Secretary of State's website has a list of authorized remote notaries.

Read the law: Md. Code, Estates & Trusts § 17-110; State Government § 18-241

NOTE: A power of attorney that authorizes certain real estate transactions must be executed the same way as a deed and recorded and is subject to specific requirements.

Read the law: Md. Code, Real Property § 4-107

 

When Power of Attorney Goes into Effect?

Normally, the power of attorney goes into effect as soon as the principal signs the document. (NOTE: For electronic powers of attorney, the date of executive for the power of attorney is the date of execution that is stated in the certified power of attorney.)

However, a ”springing” power of attorney gives the agent the power to act for the principal only after a certain event, such as when the principal becomes disabled.

• The wording of the document must be very specific so that there is no question about what counts as an event that matches the requirements of the power of attorney.
• The principal may authorize someone to say whether the event making the power effective has happened.
• If the power of attorney is supposed to go into effect when the person becomes sick or hurt and no one has been authorized to make the determination, then a doctor or a judge may make the determination. 

Read the Law: Read the law: Md. Code, Estates & Trusts § 17-110; § 17-111

 

Powers and Duties of Person with Power of Attorney

The power of attorney should describe the powers of the agent. If there is a question about the limits of the agent’s powers, then the principal, agent, guardian of the principal, principal's family member, or a government agency may petition a court to decide what power the agent has.

An agent is required to act in the best interest of the principal. The agent must do what they think the principal would want them to do, to the best of the agent’s ability. 

Read the law: Md. Code, Estates & Trusts § 17-103

Agents must keep a record of all receipts and transactions made for the principal. Agents must act loyally for the benefit of the principal's best interest and cooperate with the person who is empowered to make health-care decisions for the principal if there is one.

Read the law: Md. Code, Estates & Trusts § 17-113

The agent has a right to reimbursement for reasonable expenses paid while acting for the principal, but the agent has no right to payment beyond that unless it is included in the power of attorney.

Read the law: Md. Code, Estates & Trusts §17-114

Ethical Considerations from the Maryland Courts

 

Medical Powers of Attorney (Advanced Directives)

Any competent person may create a power of attorney to give someone the power to make healthcare decisions for him in case something happens. These documents are called advanced directives. The Maryland Health Care Decision Act governs advance directives.

Under the Maryland Health Care Decision Act, the person the principal appoints to make healthcare decisions is called a “health care agent.” An owner, operator or employee of the healthcare facility providing care to the principal cannot usually serve as the healthcare agent unless the person was selected as the healthcare agent before the facility began care of the principal. 

Read the Law: Md. Code, Health General §§ 5-601, and 5-602

An advance directive can be either a written or electronic document. It must be signed, dated, and witnessed by two witnesses. It is the responsibility of the person who wants his/her advance directive honored to tell his/her doctor about it. Anyone except the healthcare agent may serve as a witness.

Unless otherwise stated in the advance directive, the directive goes into effect when the person becomes too sick to make a decision about his care. If the patient is unconscious or not able to communicate, then the attending doctor may make the determination that the advance directive is in effect. Otherwise two doctors must certify that the patient is not capable of making an informed decision about care.

Read the Law: Md. Code, Health General § 5-602

The Maryland Health General article provides a sample form for an advanced directive. The form includes provisions for selecting a health care agent, selecting powers of the agent, making a living will and preferences for treatment, and organ donation. 

Alternatives to Guardianship: Advance Directives from the Maryland Courts

Decision-Making Standards from the Maryland Courts

Medical Decisions from the Maryland Courts

 

Ending the Power of Attorney

A power of attorney may end in a number of ways. A power of attorney may end when:

• the principal dies (ends when the agent learns of the principal's death);
• the principal becomes incapacitated (unless the power of attorney is durable);
• the principal revokes the power of attorney;
• the power of attorney provides that it terminates;
• the purpose of the power of attorney is accomplished; OR
• the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.

Note: If the principal dies, any action that the agent takes in good faith – until the agent learns of the principal’s death – is binding. 

Read the Law: Md. Code, Estates & Trusts § 17-112

 

Copies

The power of attorney document may provide that copies have the same force and effect as the original. The statutory Personal Financial Power of Attorney form, for example, allows for a copy to have the same effect as an original. If you are using the statutory form and you do not want a copy to be valid, cross out this provision or add special instructions that you prefer.