Updated August 11, 2023
A Maryland durable power of attorney is a statutory document that can be used to appoint a person (“agent”) to carry out someone else’s (“principal”) financial affairs and other requests. Such actions would be performed on the principal’s behalf and will remain in effect if the principal becomes incapacitated (“durable”). The agent will have access to all the principal’s accounts and finances, so it’s necessary to choose a trusted person for this role.
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Attorney General of Maryland Version
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Table of Contents |
Laws
Trust and Estates Code Title 17 (General and Limited Power of Attorney Act)
Definition of “Durable”
A power of attorney by which a principal designates another as an attorney in fact or agent and the authority is exercisable notwithstanding the principal’s subsequent disability or incapacity (§ 17-105(a)).
Definition of “Power of Attorney”
“Power of attorney” means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term “power of attorney” is used (§ 17-101(i)).
Signing Requirements
The power of attorney must be in writing and signed by the principal, or by someone else acting at the direction of the principal and in the presence of the principal. The signing must be acknowledged by the principal in the presence of a notary public. And the power of attorney must be attested and signed by two or more adult witnesses who affix their signature in the presence of the principal and of each other. The notary may serve as one of the two required attesting witnesses, unless the notary is observing the signing remotely with digital communication technology as described in § 18–214 of the State Government Article.
Statutory Form
The Maryland Legislature has provided a sample statutory form for powers of attorney, available at § 17–202 of the Maryland Laws.
How to Write
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Designation Of Agent
(1) Name Of Principal. Begin the Maryland appointment of an Attorney-in-Fact with your printed name in the first declaration statement. As the Principal, you will be required to read this entire form to deliver a proper executing signature. Bear in mind that the language of this document is set, therefore an opportunity to directly address any issues with this appointment will be available. If this form delivers too much power to the Agent, then it is recommended that the statutory short form version be issued instead.
(2) Name Of Agent. The name of the person that you have chosen to act with your authority in the matters defined by this paperwork must be documented. This Party, known as your Agent or Attorney-in-Fact, will be granted the ability to carry out your directives even if you are incapacitated because this document will solidify the principal authority you intend to grant this Agent.
(3) Agent’s Address. Your Attorney-in-Fact’s complete address must be reported.
(4) Agent’s Telephone Number. Include the current telephone number where your Attorney-in-Fact can be reached.
Designation Of Coagents
(5) Name Of Principal. The second declaration made will be to name additional Agents or Attorneys-in-Fact who will operate with the principal power with the Agent named above. This is optional however if more than one Attorney-in-Fact is to be granted principal power the second declaration statement must be completed beginning with the full name of the Principal.
(6) Name Of Coagent. The Second Attorney-in-Fact or the Coagent must be named as such. By default, the Attorney-in-Fact and Coagents will have to agree unanimously to use principal authority while you are incapacitated however, you may set a hierarchy at a later point in this document.
(7) Coagent’s Address And Telephone Number. The address and telephone number of the Coagent or Second Attorney-in-fact is required for this appointment.
(8) 2nd Coagent’s Name And Contact. A Second Coagent can be named as a Third Attorney-in-Fact to carry principal authority. If you wish to appoint a Party to act in this role then his or her full name, current address, and telephone number must be reported in the second declaration statement.
(9) Special Instructions Regarding Coagents. As mentioned earlier, if you have named more than one Attorney-in-Fact to carry out your directives with principal power, then it is strongly recommended that you deliver some instruction as to how they should interact when using your name. By default, they will have to act unanimously meaning that in order for the principal power(s) granted to be used, all Co-Agents or Attorneys-in-Fact must be in agreement. This may be appropriate for some of your wishes, all of your wishes, or it may be a hindrance thus, an area where you can set conditions to their interaction has been made available. Here, you can set a hierarchy, give definitive instruction as to which decisions require unanimous agreement and which may be handled by only one (Attorney-in-Fact), or set some or all of your decisions to require all Attorneys-in-Fact be in agreement. This optional area is left to your discretion as the Principal behind this document.
Designation Of Successor Agents
(10) Name Of Successor Agent. If you are incapacitated and one or more of the Attorneys-in-Fact named above become unable to fulfill their roles because he or she will not or cannot act on your behalf, then the current plans of representation you depend on may be significantly affected. This paperwork allows you to engage the precaution of setting a Successor Agent to take over the vacant role if this becomes necessary. It should be noted that a Successor Agent is not granted access to principal authority unless or more of the Attorneys-in-Fact are removed, unable, or unwilling to act in the role assigned.
(11) Successor Agent’s Address. The address where the Successor Agent can be contacted must be documented.
(12) Successor Agent’s Telephone Number.
(13) Second Successor Agent. A Second Successor Agent can be assigned in case the first one is unavailable, refuses the role of Attorney-in-Fact, or cannot assume this role or more than one Attorneys-in-Fact cannot or will not act as such. To name a Second Successor Agent, his or her name, address, and phone number must be produced to the third declaration statement.
Special Instructions
(14) Principal Directives. The principal powers this document grants to the Attorney-in-Fact can be considered broad and sweeping. Therefore, any limitations that you wish placed on these powers should be well-documented and included. Additionally, if you wish to set a specific start date to the Attorney-in-Fact’s principal powers, this must be included in the content of this form by the time of signing. Any provisions or instructions meant to be a part of this appointment can be set directly to this paperwork or attached in a separate document and presented with it at the time of your signing.
Termination Date
(15) Date Of Expiration. Normally, unless otherwise indicated, this document will become effective once you sign it and continue to be in effect until you revoke it or become deceased. If preferred, however, you may set a specific calendar date for the effect of this document to expire. This will mean your Attorneys-in-Fact and Successor Agent(s) will no longer have access to the authority this document grants as of the termination date you name. This is an optional area of the template.
Nomination Of Guardian
(16) Guardian Of Property. Optionally, you can use this paperwork to nominate a specific Party to act as the Guardian of your Estate should the courts of Maryland determine that a Guardian to your property must be appointed to safeguard your rights. Such an appointment is strictly in the hands of the State of Maryland however, a nomination directly from the Principal of this document would, in most cases be strongly considered. In addition to the name of the Nominee, his or her address and phone number should be listed.
(17) Guardian Of Person. An additional option allows you to nominate a Guardian of your Person should Maryland Courts deem this necessary. This Party must be specifically nominated to this role by name, address, and telephone number.
Signature And Acknowledgment
(18) Your Signature. You must complete the signature area of this appointment before two Witnesses and a Notary Public recognized in these roles by the State of Maryland.
(19) Your Name Printed.
(20) Your Address.
(21) Your Telephone Number.
(22) Notarizing Your Signature. The Notary Public observing this signing may direct you to release the documents to him or her after you have signed it or to the Witnesses. Follow all instructions provided by the Maryland Notary Public to satisfy the notarization requirements for this paperwork.
Witness Attestation
(23) Principal Name. Your name must be documented as the name of the Principal in the Witness declaration statement for this signing.
(24) Witness 1’s Signature. The first Party acting as a Witness must sign his or her name as Witness #1 then supply his or her printed name, address, and phone number to show that the Witness Statement made is accurate.
(25) Witness 2’s Signature. The second Witness must tender his or her signature, printed, name, address, and phone number to verify that he or she agrees with the testimony provided.
Related Forms
Download: PDF, MS Word, OpenDocument
Download: PDF, MS Word, OpenDocument