A Maine durable power of attorney form is a legal document through which an individual (“the principal”) can confer legal authority to another individual (“the agent”) to make financial decisions on their behalf.
A DPOA stays in effect even if the principal becomes incapacitated, while a general POA does not.
Laws
Power of attorney forms in the state are durable by default.
- Statute: Title 18-C, Article 5, Part 9 (Uniform Power of Attorney Act).
- Presumed Durable: Yes (§ 5-904).
- Signing Requirements: The signature of the principal is required.
- Notarization: Requires notarization (§ 5-905). Notarization is also required for the Agent’s Certification when this form is signed and utilized—although the use of it is not mandatory (§ 5-905(1), § 5-951).
- Statutory Form: No, only an Agent’s Certification Form.
Definitions
Durable – “Durable” means the power doesn’t end with the principal’s incapacity (§ 5-902(2)).
Power of Attorney – “Power of attorney” is a legal document (or record) authorizing an agent to act on behalf of the principal, regardless of whether this particular term is explicitly used (§ 5-902(7)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
§ 5-947 establishes that an agent is allowed to make certain gifts “for the benefit of a person.” This includes gifts to trusts, accounts under the Maine Uniform Transfers to Minors Act, and tuition savings accounts or prepaid tuition plans.
Considerations:
- Consistent with the principal’s objective, known or presumed.
- Value and nature of the principal’s property.
- Principal’s foreseeable obligations and needs.
- Minimization of the overall tax burden on the principal’s estate.
- Eligibility for government benefits.
- The principal’s past gifting habits.
Agent’s Authority Limitations
State law places limitations on what an agent can do under a durable power of attorney (§ 5-931). The agent’s authority is restricted in two main ways:
First, the agent can only perform certain actions if the DPOA document explicitly grants them permission. These include creating trusts, making gifts on the principal’s behalf, creating or changing rights of survivorship, or managing the principal’s digital communications.
The agent cannot use their power to give themselves or certain close relatives an ownership interest in the principal’s property. This helps prevent the agent from abusing their position for personal gain.
Revocation and Termination
There are several ways under § 5-910 to terminate a DPOA and agent’s authority:
- When the principal dies.
- When the principal revokes the document.
- Following a condition or date when it automatically ends.
- If the specific task it was created for is completed.
- If the principal revokes the agent’s authority, the agent dies, becomes incapacitated, or resigns and there is no alternate agent named in the document.
An agent who is the principal’s spouse loses their authority if the couple divorces or legally separates unless the document specifies otherwise. The same applies to registered domestic partnerships.
Even after the DPOA terminates, the agent may still be protected if they acted in good faith without knowing that it had ended. A new form doesn’t automatically revoke a previous one unless the new document explicitly states that it does.
Safekeeping and Registration
In Maine, there is no statewide registry for DPOAs. What you should do is:
- Keep the original in a secure location accessible to the agent when needed.
- Give a copy to your financial institutions or other relevant parties you want the agent to interact with.
- Regularly review your document to ensure it reflects your current needs and that the people you’ve chosen are still the right ones for you.
Additional Resources
- State Bar Association Website: Related information and resources for the public.
- Pine Tree Legal Assistance (PTLA): Offers a comprehensive guide on powers of attorney in the state and is focused on helping low-income residents.
- Legal Services for the Elderly (LSE): Power of attorney information and other resources for elderly residents.
