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Trust and Estates Attorneys

Granting Power of Attorney in Maryland

The designation of a power of attorney in Maryland is often done in a written document that has been witnessed and/or notarized. The State of Maryland enacted the Maryland Statutory Power of Attorney Act in 2010, which states that if a statutory form is used, the power of attorney should not be rejected by Maryland financial and banking institutions. If it is rejected and is done so wrongly, the institution may be forced to pay damages to the individual as a result of the denial of the use of that power of attorney.

Often, a good candidate for granting power of attorney in Maryland is an individual who is trustworthy, who is financially and fiscally responsible, who does not have financial hardships or concerns of their own, who is over the age of 18, and who is someone that an individual would trust to make financial and legal decisions on their behalf. To best understand the considerations that go into granting power of attorney in Maryland, an experienced power of attorney lawyer should be consulted.

Scope of Decisions

The scope of the decisions that an attorney-in-fact is able to make will be provided in the document, but for very broad grants of powers, it is not uncommon for an attorney-in-fact to make all financial and legal decisions, to pay monthly bills, to make decisions with regard to investing, to hold and sell assets and, in some cases, take over or run an individual’s company for them or on their behalf. The scope can be broad in many cases, depending on the language of the power of attorney document.

The scope of the power of attorney document in Maryland will dictate what authority that individual has, but a power of attorney that has been created for financial legal purposes does not allow someone, to make medical decisions unless that grant of authority has also been given.

Power of Attorney to Multiple Individuals

It is not uncommon for individuals to ask to grant dual fiduciaries to act on their behalf. However, in many cases, granting authority to individuals at the same time may be something that is done with caution, because of the administrative expense and the necessity of the individuals to agree on decisions that are made on behalf of the grantor.

While that is tolerable to many individuals because they have two individuals that they trust, it is often, for administrative convenience, easier to appoint only one individual to act.

Complications

It is not uncommon for co-fiduciaries to not agree on all decisions. In those cases, it may result in a company or a financial institution seeking court resolution before allowing either power of attorney to act.

Assigning co-fiduciaries when granting power of attorney in Maryland may create an undue administrative burden, because the attorneys must act together. For example, in many cases, they must both sign checks written on the grantor’s behalf. They must also both be available to open bank accounts or close bank accounts, to invest, or to make other financial decisions.

In many cases, the individuals are granted to act together for all responsibilities. It is possible to assign different responsibilities and powers to different fiduciaries.

Responsibilities

The grantor can require that their power of attorney become effective upon a condition in the event of incapacitation, such having two doctors declare that they have lost capacity to handle certain matters for themselves. Many individuals do not choose to create this type of power of attorney, because there can be a gap from the time that the power of attorney is needed until when it can actually be used.

It is becoming more common for individuals to grant a broad scope of power of attorney that becomes effective immediately. That way, the document is available not only when the individual loses capacity, but perhaps when the individual loses their ability in some other way, such as being out of town or simply unavailable.

In this example, if an individual retains all of the requisite capacity but simply loses the ability to handle a matter on their own, their power of attorney would be able to act on their behalf, without needing to meet the conditions of incapacitation. In general, attorneys-in-fact can step into the shoes in all regards for both financial and legal purposes of the grantor.