Maryland Durable Power of Attorney
A Maryland durable power of attorney must be signed before a notary and attested by two adult witnesses under Est. & Trusts 17-110, and is durable by default.
Introduction
A durable power of attorney is a legal document that lets you name someone you trust to manage your money, property, and business matters if you cannot handle them yourself. In Maryland that person is called your agent, or attorney-in-fact. The word durable is the key: a durable power of attorney keeps working even if you later become incapacitated and can no longer make decisions. Maryland makes a power of attorney durable by default: under Md. Code, Est. & Trusts 17-105, a power of attorney in writing is durable unless the document provides otherwise, so the agent's authority survives your later disability or incapacity without special language. To be valid under Md. Code, Est. & Trusts 17-110, a power of attorney executed on or after October 1, 2010 must be in writing, signed by you (or by another person in your physical presence and at your express direction), acknowledged before a notary public, and attested and signed by two or more adult witnesses. The notary may also serve as one of the two witnesses. Maryland publishes statutory forms at Est. & Trusts 17-202 and 17-203. This guide covers the financial and general durable power of attorney only. A health care power of attorney is a separate Maryland instrument. Attorney review is available as an option before you sign.
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Key Things to Know
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A durable power of attorney lets someone act for you. It names an agent, also called your attorney-in-fact, to handle your money, property, and business matters. Durable means the document keeps working even if you later become incapacitated, which is usually why people set one up.
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It is durable by default in Maryland. Under Md. Code, Est. & Trusts 17-105, a power of attorney in writing is durable unless the document says otherwise, so your agent's authority survives your later disability or incapacity without any special durability language.
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You sign before a notary AND two witnesses. Under Md. Code, Est. & Trusts 17-110, a power of attorney executed on or after October 1, 2010 must be in writing, signed by you, acknowledged before a notary public, and attested and signed by two or more adult witnesses. Notarization alone is not enough.
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The notary can count as a witness. Under Md. Code, Est. & Trusts 17-110 the notary before whom you acknowledge the document may also serve as one of the two required adult witnesses, so you may need only one additional witness.
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Maryland publishes statutory forms. The Maryland Statutory Form Personal Financial Power of Attorney is at Md. Code, Est. & Trusts 17-202 and a limited form at 17-203. A document substantially in one of these forms has the meaning and effect prescribed by Title 17.
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Some powers need express language. Under Md. Code, Est. & Trusts 17-202, authority to create or change a retirement-plan beneficiary designation in favor of the agent, the agent's spouse, or a dependent of the agent must be explicitly stated in the Special Instructions or a separate power of attorney.
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Real-property use means recording. A power of attorney used to sell or grant real estate must be executed in the same manner as a deed and recorded in the county land records under Md. Code, Real Property 4-107. A financial power of attorney used only for non real estate acts need not be recorded.
Key decisions before you file
Before you file a Durable Power of Attorney in Maryland, a few decisions shape the document: which option to choose and what each one means. The Durable Power of Attorney guide walks through them.
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Maryland Requirements for Durable Power of Attorney
Sign Before a Notary and Two Adult Witnesses
Under Md. Code, Est. & Trusts 17-110, a power of attorney executed on or after October 1, 2010 must be in writing, signed by you (or by another person in your physical presence and at your express direction), acknowledged before a notary public, and attested and signed by two or more adult witnesses who sign in the presence of you and each other. Notarization alone is not enough.
The Notary May Serve as One Witness
Under Md. Code, Est. & Trusts 17-110, the notary public before whom you acknowledge the document may also serve as one of the two required adult witnesses. The statute requires only that witnesses be adults and does not expressly disqualify your named agent from witnessing.
Durable by Default
Maryland makes a power of attorney durable by default. Under Md. Code, Est. & Trusts 17-105, a power of attorney in writing is durable unless the document provides otherwise, so the agent's authority survives your later disability or incapacity without any special durability language.
Choose Immediate or Springing Effect
Maryland's statutory financial form is effective immediately unless you state otherwise in the Special Instructions. Under Md. Code, Est. & Trusts 17-202, you may make the power of attorney springing so that it takes effect only on a future date or event, such as your incapacity, which is defined in Est. & Trusts 17-101.
Statutory Financial and Limited Forms
Maryland publishes a Maryland Statutory Form Personal Financial Power of Attorney at Md. Code, Est. & Trusts 17-202 and a limited form at 17-203. A document substantially in one of these forms has the meaning and effect prescribed by Title 17. Using the statutory form is optional but helps third parties recognize your agent's authority.
Record It for Real-Property Use
A power of attorney used to sell or grant real estate must be executed in the same manner as a deed and recorded in the county land records through the clerk of the circuit court. Under Md. Code, Real Property 4-107, a financial power of attorney used only for non real estate acts need not be recorded.
Some Powers Need Express Language
Under Md. Code, Est. & Trusts 17-202, authority to create or change a retirement-plan beneficiary designation in favor of the agent, the agent's spouse, or a dependent of the agent must be explicitly stated in the Special Instructions or a separate power of attorney. Without that express grant, the agent cannot take those estate-shifting acts.
Revocation and Agent Duties
Under Md. Code, Est. & Trusts 17-106, the power of attorney terminates on your revocation, among other events; give written notice to your agent and any relying third party. Under Est. & Trusts 17-113, an agent who accepts appointment is a fiduciary who must act loyally, within the scope granted, with care, and keep records of all transactions.
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