Baldwin & Briscoe P.C.
301-862-4400
22335 Exploration Drive Ste. 2030
Lexington Park, MD 20653
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Powers of Attorney

 

Quick Links
Overview
Durable Power of Attorney
Termination of a Power of Attorney
Agents’ Duties
The Maryland General and Limited Power of Attorney Act (2010)

 

Overview
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.

 

Durable 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.

 

Termination 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.

 

Agents’ Duties
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. 

 

The 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 property. 

 

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.  


 

The Law Offices of Baldwin & Briscoe, P.C. also offers these services:

Bankruptcy and ForeclosureBusiness Law, Civil LitigationCriminal DefenseEmployment, Disability, and Consumer RightsFamily LawGovernment Contracts LawIntellectual Property, Personal InjuryReal Estate, Social Security Disability & Workers’ Compensation and Wills, Trusts, & Estates





Contact Us

The Law Offices of Baldwin, Briscoe & Steinmetz, P.C.

22335 Exploration Drive

Suite 2030

Lexington Park, MD 20653

301-862-4400 Phone

301-862-3009 Fax

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Samuel C.P. Baldwin, Jr., Esq.

Janice Briscoe, Esq.

Richard J. Steinmetz Jr., Esq.

David J. Hebb, Esq.

Sandra Kaufman Jonasen, Esq.


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With an office conveniently located in Lexington Park, The Law Offices of Baldwin, Briscoe & Stienmetz, P.C. serves clients in the counties and cities of Lexington Park, Leonardtown, Hollywood, Mechanicsville, Loveville, Helen, Breton Bay, Chaptico, Charlotte Hall, Golden Beach, Avenue, La Plata, Waldorf, Newburg, Port Tobacco, Port Charles, Solomons Island, Prince Frederick, Chesapeake Shores, Hughesville, Benedict, Nanjemoy, Lusby, Port Republic, St. Mary's County, Charles County, Calvert County, Prince George's County, Southern Maryland.


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