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.
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
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.
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.
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.
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.
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.
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.
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.
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.
Frequently Asked Questions
A durable power of attorney is a legal document that lets you name an agent, also called an attorney-in-fact, to manage your financial and property matters. It is called durable because, under Md. Code, Est. & Trusts 17-105, it keeps working even if you later become incapacitated, rather than ending when you lose the capacity to make decisions. In Maryland a written power of attorney is durable by default.
The difference is what happens if you become incapacitated. A durable power of attorney continues to operate after your later disability or incapacity, while a regular, nondurable power of attorney ends the moment you lose that capacity. Under Md. Code, Est. & Trusts 17-105, Maryland treats a written power of attorney as durable by default, so you would have to state expressly in the document that it is not durable for it to end at incapacity.
Under Md. Code, Est. & Trusts 17-106, a power of attorney is terminated by the principal's revocation, among other events, and the statute preserves any revocation terms in the document itself. Because acts taken in good faith without actual knowledge of the revocation still bind the principal, give written notice of the revocation to your agent and to any third party relying on the power of attorney.
A springing power of attorney takes effect only when a future event, such as the principal's incapacity, occurs. Maryland's statutory financial form at Md. Code, Est. & Trusts 17-202 is effective immediately unless the principal states otherwise in the Special Instructions, which lets you make it springing. Incapacity is defined in Est. & Trusts 17-101.
Maryland's statutory financial form requires express, explicit authorization for certain estate shifting powers. Under Md. Code, Est. & Trusts 17-202, authority to create or change a beneficiary designation for a retirement plan 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 acts.
Yes, when it is used to sell or grant real estate. Under Md. Code, Real Property 4-107, a power of attorney authorizing an agent to sell and grant property must be executed in the same manner as a deed and recorded in the county land records through the clerk of the circuit court. A financial power of attorney used only for non real estate acts need not be recorded.
No. A health care power of attorney in Maryland is a separate instrument with its own execution rules. The financial power of attorney described in this guide, governed by Est. & Trusts Title 17, does not authorize health care decisions, and the Est. & Trusts 17-202 statutory form is for personal financial matters only.
No. A power of attorney can only be signed by a principal who still has capacity to understand and authorize it. If your parent is already incapacitated and cannot knowingly sign, a power of attorney is not available. Instead, the family must petition the court for a guardianship of the property of a disabled person, the grounds for which are referenced in Md. Code, Est. & Trusts 17-101.