Durable Power of Attorney
Termination of a Power of Attorney
The Maryland General and Limited Power of Attorney Act (2010)
To be valid, a power of attorney must be in writing, signed by
the principal, or another person in the principal’s presence and at the express
direction of the principal, acknowledged by the principal before a notary
public, and attested or signed by two or more adult witnesses who sign in the
presence of the principal and in the presence of each other.
A power of attorney is valid the moment it is signed, unless the
power of attorney states otherwise. If
the power of attorney is valid on a future contingency, the principal may
authorize one or more people to decide whether that contingent event has
occurred. If a person is not designated,
but the power of attorney is valid upon the principal’s incompetency, that
determination will be made by a physician, a licensed psychologist, an
attorney, judge, or appropriate government official. A person designated to make the determination
is entitled to have access to the principal’s health care information and to
communicate with the principal’s health care providers.
Power of Attorney
A durable power of attorney is a power of attorney where the
principal designates another person to act on their behalf and that authority
is exercisable notwithstanding the principal’s subsequent disability or
incapacity. In Maryland, power of
attorney documents are presumed to be to durable, unless the document
specifically states otherwise.
of a Power of Attorney
A power of attorney terminates under the following
circumstances: the principal’s death; the principal becomes incapacitated (if
the power of attorney is non-durable); the principal revokes the power of
attorney; a specific provision in the power of attorney provides for its
termination; the purpose for the power of attorney is accomplished; the
principal revokes the agent’s authority, or the agent dies, becomes
incapacitated or resigns, and the power of attorney does not provide for
another agent to act under the power of attorney.
In some cases, although the power of attorney may not terminate,
the agent’s authority may. In such
cases, the power would then pass to a backup agent designated in the
power-of-attorney. An agent’s authority
terminates under the following circumstances: the principal revokes the
authority; the agent dies, becomes incapacitated or resigns; an action is filed
for the dissolution or annulment of the agent’s marriage to the principal, or
their legal separation, unless the power of attorney otherwise provides, or the
power of attorney terminates.
By statute, Maryland has proscribed certain duties that apply to
agents exercising authority under a power of attorney. The first three duties apply to all powers of
attorney and cannot be disclaimed or altered by the document. These duties include: that the agent will act
in accordance with the principal’s reasonable expectations to the extent
actually known by the agent and, otherwise, act in the principal’s best
interest; that the agent will act with care, competence and diligence for the
best interest of the principal; and that the agent will act only within the
scope of the authority granted in the power-of-attorney.
A second category of duties apply generally, however a principal
may specify otherwise in the power of attorney.
These duties include: act loyally for the principal’s benefit; act so as
not to create a conflict of interest that impairs the agent’s ability to act
impartially in the principal’s best interest; keep a record of all receipts,
disbursements and transactions made on behalf of the principal; cooperate with
a person who has authority to make health care decisions for the principal to
carry out the principal’s reasonable expectations to the extent actually known
by the agent, and otherwise act in the principal’s best interest; and attempt
to preserve the principal’s estate plan, to the extent known by the agent, if
preserving the plan is in the principal’s best interest.
If an interested party files a petition to review the actions of
the attorney-in-fact, and the court determines that the agent acted
inappropriately, the court has wide discretion to remedy the consequences of
the agent’s actions. For instance, in
some cases, the court can order that property or money be returned to the
principal or may declare that a deed or contract made on behalf of the
principal is invalid.
Maryland General and Limited Power of Attorney Act (2010)
In 2010 Maryland enacted into law the Maryland General and
Limited Power of Attorney Act. The law
is designed to curb abuse, especially financial abuse, of older individuals,
that is a growing problem in the past few years. The typical example of this type of abuse is
that a child or friend of the victim obtains a power of attorney from the
victim and then uses the power of attorney to transfer money or other property
from the principal to himself or herself.
The Act permits an individual to petition the court to make a
determination whether the agent acted appropriately, and vests the court with
significant power to remedy any misappropriation of the principal’s
The Act provides that an interested party may petition the court
to review the agent’s actions to determine whether they were appropriate. An interested party includes the principal or
the agent, a guardian or conservator, another fiduciary acting on behalf of the
principal, a person who is authorized to make health care decisions for the
principal, the principal’s spouse, parent or descendant, any individual who
would qualify as a presumptive heir of the principal, a pay-on-death
beneficiary, any person named as a beneficiary to receive any property,
benefit, or contractual right on the principal's death or as a beneficiary of a
trust created by or for the principal that has a financial interest in the
principal's estate, a government agency having authority over the welfare of
the principal, the principal’s caregiver or other individual exhibiting
sufficient interest in the principal’s welfare, and a person being asked to
accept the power of attorney.
The Act sets forth a specific form for a power of attorney and
mandates that a power of attorney in that form must be accepted.
The information contained on this page is provided as general
information and does not constitute legal advice.
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Lexington Park, MD 20653
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