The power of attorney is a document that allows someone to step into someone else’s shoes to handle legal or financial affairs. The document creates a fiduciary relationship between a third party and the assigner of the document so that they can assist with financial or legal matters. The person who is named power of attorney becomes what is called the “attorney-in-fact” for the assigner.
There are many requirements that lead to granting someone the power of attorney, and there are many responsibilities to keep in mind once granted. It is important to work with a skilled power of attorney lawyer to help understand the new responsibilities that come with the power of attorney in Maryland.
Maryland enacted the Maryland Power of Attorney Act in 2010. The law provides for a statutory form that, if used, financial institutions and banking institutions cannot reject. So, while other forms may also be compliant with Maryland law, if the Maryland statutory form is used without modification, then it should not be rejected by financial institutions.
Generally, anybody can be appointed as power of attorney. It could be a friend, a relative and, in some cases, it could be a trusted adviser or an attorney. A good fit for a power of attorney is usually someone over the age of 18 who is financially responsible, who has not committed any major crimes, who one could trust to handle their financial and legal affairs while they are still living. A person does not have to choose a relative to act as their power of attorney. Any individual can be appointed. While it is not uncommon for individuals to appoint someone that they are related to, it is not a requirement.
The Maryland statutory form requires two witnesses and a notary. The assigner must also be of sound mind before executing a power of attorney, and they must do so in their own free will.
Receiving Power of Attorney
Generally, anyone over the age of 18 may consider using a power of attorney for financial and legal purposes as part of a comprehensive estate plan. The creation of a financial and legal power of attorney can prevent, in most cases, the need for a guardian to serve on someone’s behalf if they lose the requisite capacity to handle their own affairs.
For this reason, it is wise for any individual to consider assigning the responsibilities of power of attorney in Maryland to a trusted friend or loved one. A guardianship proceeding requires appointment by the court, and the costs associated can be much greater than those for assigning power of attorney. The appointment process can be lengthy, and the guardianship could create a delay from the time a guardian or someone is needed to make financial and legal decisions until the time that someone is appointed by the court. Guardianship also requires continued court supervision throughout the term of the guardianship.
Responsibilities Once Granted
When someone is named power of attorney, they accept a fiduciary obligation to handle the assigner’s affairs pursuant to the terms of the document.
Many powers of attorney grant a broad spectrum of powers, so the documents would be pervasive in what powers may be granted. For example, it is not uncommon to grant very limited power of attorney responsibilities in Maryland to finish one transaction, such as a family real estate matter, while other powers of attorney are very broad and allow individuals to do many things. In some cases, powers of attorney are assigned even to make estate planning decisions. These can be important documents in an estate plan because unlike a last will and testament or a testamentary trust, these documents govern access during an individual’s lifetime.
The provisions of the power of the attorney document will define the scope of an attorney-in-fact’s responsibility in Maryland. Some powers of attorney are very limited in scope, allowing an attorney-in- fact to only act in very specific circumstances such as a single transaction or a single time period. Other grants of power are very broad and would allow attorneys in fact to make decisions concerning the individual’s assets and, in some cases, even to modify or change estate planning.
Contacting an Attorney
It is important to work with a compassionate and experienced Maryland power of attorney lawyer so they can help to streamline the new responsibilities they face. There are new fiduciary obligations to take on and it is important to know that they are being taken care of the best they can.