How Do I Get a Power of Attorney in Maryland?
[Updated 2/5/24]
Have you considered there may be a time when you cannot make critical decisions about your health or finances? Who will help when that day comes?
No one wants to contemplate incapacitation. However, many adults, whether by accident or health crises, at some point lose the ability to make decisions for themselves.
It's essential you plan ahead by establishing powers of attorney to protect you and your estate. Where do you start?
Maryland estate planning attorneys answer two commonly asked questions: “What is a Power of Attorney?” and “How Do I Get a Power of Attorney in Maryland?”
What is a Maryland Power of Attorney?
A Maryland power of attorney is a document naming someone as an agent with the legal authority to act on your behalf. The person signing the power of attorney is referred to as the principal.
The person you appoint as your power of attorney becomes known as a fiduciary and has the power and legal right to make decisions and act on your behalf. Another name for your fiduciary is an attorney. Your appointed attorney manages your affairs when you're unable to manage them yourself.
In Maryland, a document granting authority to one person over another person's affairs is regarded as a legal power of attorney. The phrase “power of attorney” need not be contained in the document's language for the court to recognize a fiduciary’s authority to act on behalf of the principal.
Different Types of Powers of Attorney
Maryland recognizes several different types of powers of attorney. Powers of attorney fall into two categories: General or Limited.
General Power Of Attorney
A general power of attorney authorizes the fiduciary to act in all business matters related to the principal.
The scope of a general power of attorney includes:
Financial matters such as banking, investments, loan agreements, and real estate transactions.
Legal matters related to lawsuits and contracts.
Unless you limit the scope of a general power of attorney, the fiduciary can handle all financial transactions you could do yourself.
Limited Power Of Attorney
A limited power of attorney restricts the fiduciary's legal authority to only the powers defined by the document. For example, you may appoint a power of attorney to handle a real estate transaction. The power of attorney grants your agent the authority to handle the real estate transaction, but nothing more. The authority ends when the transaction is complete.
Under the scope of defined powers in a single document, specific decision-making authority may be isolated to:
Financial transactions (financial power of attorney)
Real estate management (special power of attorney/Maryland real estate power of attorney)
Advanced medical directives (Maryland medical power of attorney to make health care decisions)
Standby Guardianships (person to act as guardian for a minor child if a parent becomes physically debilitated, incapacitated, or subject to adverse immigration rulings)
Regardless of the type of power of attorney drafted, the document should clearly define the fiduciary's powers. Clearly defined powers ensure the greatest likelihood that the power of attorney will be honored by others when executed.
Who May Establish a Power of Attorney in Maryland?
In the State of Maryland, a person must meet these requirements to create a power of attorney that is recognized as legally enforceable:
Be at least 18 years old;
Be able to understand the power of attorney forms, the powers being granted, and the property affected by the power of attorney; and,
Intend to give the power designated in the document to the named fiduciary
Powers of attorney that do not meet these signing requirements may not be valid under Maryland law.
Who May Act as Power of Attorney in Maryland Under Maryland Law?
Your attorney-in-fact will have a wide range of authority over your affairs and should be selected carefully. Consider who could understand and best execute the powers granted to them when choosing a power of attorney.
In limited powers of attorney, you may select different people to act as your fiduciaries:
A financial fiduciary should be someone skilled with money, financially sound, and comfortable handling financial affairs.
A medical fiduciary should understand your health history, care directives, and long-term and end-of-life care provisions. They must be able to abide by your wishes and not be clouded by emotions or their preferences.
For a general power of attorney, select an agent who can competently represent your preferences in all matters.
Fiduciaries must be able to maintain detailed records and receipts of transactions made on behalf of the principal. They must also be able to act loyally and in the principal’s best interest.
If you are unsure who to name as your fiduciary, seek advice from your estate planning lawyer. Based on their experience, they may offer valuable insight regarding agents acting on your behalf.
Does a Power of Attorney Need to Be Recorded in Maryland?
A power of attorney form in Maryland need not be recorded or filed in the county or state offices unless the agent will handle real estate. If the agent sells, purchases, mortgages, or otherwise transacts business related to real estate, the power of attorney form must be recorded in the Land Records for the county where the real property is located.
Does a Power of Attorney Need to be Notarized in Maryland?
A power of attorney must be notarized to be valid in Maryland. A notary public is authorized by the Maryland Secretary of State to administer oaths, certify signatures and documents, and perform other duties allowed by state law.
How Do I Create a Power of Attorney in Maryland?
The Maryland General and Limited Power of Attorney Act identifies the four elements of a durable power of attorney. The power of attorney form must be:
Written;
Signed by the principal, or another person in the presence of the principal at the express direction of the principal;
Notarized by a notary public; and,
Signed by at least two witnesses over 18 years old in the presence of the principal and each other.
A power of attorney form is invalid if it does not meet these requirements. A party could dispute whether your agent had the legal authority to act in your name.
How Do I Revoke a Power of Attorney in Maryland?
You can terminate or revoke a power of attorney by signing a revocation of power of attorney. The revocation should be witnessed and notarized. However, a durable power of attorney cannot be rescinded after the principal becomes incompetent.
Do I Need a Maryland Estate Planning Attorney to Draft My Power of Attorney?
Creating a Maryland power of attorney may seem simple enough. However, the powers granted by the document suggest that conferring with an estate planning attorney is a wise idea.
A power of attorney conveys a great deal of authority to a person acting on another's behalf. It is vital that the document specifies the scope of powers being transferred and the circumstances in which the fiduciary can enact the Maryland power of attorney.
Enlisting a Maryland estate planning attorney will ensure that your power of attorney forms conform to state requirements and meet your desired intent.
Do you need to know how to obtain a power of attorney in Maryland? Contact Steve today to help draft your power of attorney and reach your estate planning goals.
