A Maryland durable statutory power of attorney form is a legal document that allows someone (the “principal”) to appoint someone else to make decisions on their behalf. The term “durable” implies that the document remains in effect even if the principal becomes incapacitated.
A power of attorney can be general (granting the agent authority over all business and personal areas) or limited (granting the agent authority over the areas outlined in the document).
Laws
Power of attorney forms in the state are durable by default.
- Statute: Title 17 – Maryland General and Limited Power of Attorney Act.
- Presumed Durable: Yes (§ 17-105).
- Signing Requirements: Principal and two or more adult witnesses.
- Notarization: Requires notarization (§ 17-110).
- Statutory Form: Yes (§ 17-201).
Definitions
Durable – A “durable power of attorney” grants authority from a principal to an agent to act on their behalf, with that authority continuing even if the principal becomes incapacitated later (§ 17-105(a)).
Power of Attorney – “Power of attorney” refers to a written record or other documentation granting authority to an agent to act on behalf of a principal, regardless of whether the term is explicitly mentioned (§ 17-101(i)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
Your agent cannot make gifts to themselves, their spouse, or their dependents without specific authorization. With clear limitations outlined in the DPOA, your agent might be authorized to make gifts to family and friends.
Your agent has a legal duty to act in your best interests and avoid any actions that could deplete your assets unreasonably.
Agent’s Authority Limitations
An agent’s authority comes with several restrictions outlined in § 17-113.
The DPOA cannot grant your agent permission to act disloyally or create situations where their own interests conflict with yours. This means they cannot use your assets for their personal gain or engage in transactions that could compromise their ability to make impartial decisions on your behalf.
Your agent is required to maintain detailed records of all financial transactions undertaken while acting on your behalf. If you have an existing estate plan, the document empowers your agent to try and preserve it as long as doing so aligns with your best interests.
Revocation and Termination
A DPOA terminates under several conditions as outlined in § 17-112:
- Upon the principal’s death.
- If the principal revokes it.
- Under a specific termination clause.
- When the purpose is accomplished.
- If the agent dies, becomes incapacitated, or resigns, and the form doesn’t designate a successor agent.
If the principal and their spouse (who is also the agent) are married and go through a divorce or legal separation, the agent’s authority usually terminates unless the document explicitly states otherwise.
Per § 17-106, an agent acting in good faith and without knowledge of the principal’s death, disability, or the DPOA’s revocation can still take actions on their behalf. Additionally, the agent can provide an affidavit stating their lack of knowledge regarding the document’s termination, which serves as proof of their actions’ validity.
Safekeeping and Registration
Maryland does not have a statewide registry for durable powers of attorney. However, safekeeping your document is crucial to ensure its availability when needed. Keep the original in a safe location, like a fireproof lockbox at home or a safe deposit box at your bank. Make sure someone you trust knows the location and how to access it.
Consider providing certified copies to your agent, attorney, and any financial institutions you expect them to interact with (banks, investment firms, etc.).
Additional Resources
- State Bar Association Website: Provides legal resources on estate planning.
- Maryland Courts Website: Offers helpful information on life planning and powers of attorney.
