Maryland Durable Power of Attorney: How It Fits Into Your Probate-Avoidance Plan
A Maryland durable power of attorney (DPOA) authorizes a trusted agent to handle your financial matters if you cannot. It does not transfer assets at death or replace a will or trust, but it can help you avoid a court guardianship during your lifetime and support a broader estate plan to minimize probate exposure. See Maryland’s General and Limited Power of Attorney Act at Estates & Trusts (ET) § 17-101 et seq.
A DPOA is a foundational lifetime planning document in Maryland. Below is how it works, what it doesn’t do, and how to align it with a probate-avoidance strategy.
What a Maryland Durable Power of Attorney Does
When properly executed, a durable power of attorney remains effective even if you later become incapacitated, enabling your agent to manage banking, bill payment, taxes, real estate, and other financial transactions without the delay of a court guardianship. Maryland law provides that a power of attorney is durable unless it states otherwise, and it may be effective immediately or become effective upon a future event (a “springing” POA). See ET § 17-105.
What a DPOA Does Not Do
A DPOA does not transfer ownership of assets at death, distribute your estate, or replace your will or revocable trust. A power of attorney terminates at the principal’s death; the statutory form itself instructs the agent to stop acting when the principal dies. See the codified Maryland Statutory Form at ET § 17-202 (see “Important Information for the Agent”).
At death, assets pass under beneficiary designations, survivorship/joint titling, a funded revocable trust, or your will (which may require probate). To reduce probate exposure, coordinate a DPOA with tools like a funded revocable living trust and up-to-date beneficiary designations.
Why a DPOA Helps Reduce Court Involvement
Without a valid DPOA, family may need to petition for a court-appointed guardian to manage finances during incapacity. A properly executed DPOA can often avoid that process by authorizing your chosen agent to act promptly, keeping bills paid and accounts managed without immediate court oversight.
Key Maryland-Specific Requirements
- Statutory forms. Maryland codifies statutory personal financial power of attorney forms. See ET § 17-202.
- Execution formalities. The statutory form includes specific signing blocks for the principal’s acknowledgment before a notary public and signatures of two adult witnesses. Using the statutory form (or one substantially similar) and following those formalities can improve acceptance.
- Durability and when the POA takes effect. Maryland law makes a POA durable unless it says otherwise, and it may be immediately effective or springing. See ET § 17-105.
- Acceptance by institutions. Maryland law directs persons to accept an acknowledged POA, subject to limited statutory grounds for refusal, and provides remedies if acceptance is wrongfully refused. See ET § 17-110 and ET § 17-110.1.
Durable vs. Springing Powers
An immediately effective DPOA lets your agent act as soon as needed. A “springing” POA becomes effective on a specified event (often a written determination of incapacity). While springing powers can feel protective, they may introduce delay if institutions require particular certifications. Many clients prefer an immediately effective DPOA and manage risk by selecting a trustworthy agent and tailoring powers. See ET § 17-105.
Choosing and Empowering Your Agent
- Pick someone you trust, with financial competence and availability; name a successor agent.
- Clarify expectations: recordkeeping, conflicts of interest, and whether to allow actions like making limited gifts or funding a revocable trust. Certain powers typically must be expressly granted in the document.
- Consider authority over digital assets and safe access to key documents and accounts.
Execution, Witnessing, and Notarization
Proper execution is critical to enforceability and acceptance. The Maryland statutory personal financial POA form includes signature, two-witness, and notarization blocks. Executing the statutory form (or a substantially similar form) with the required witnesses and a notary public can facilitate acceptance. If you plan remote execution or need accommodations, consult counsel to ensure compliance with current Maryland rules and any institutional requirements. See ET § 17-202.
Coordinating With Probate-Avoidance Tools
To meaningfully reduce probate risk, align your DPOA with a broader plan:
- Fund a revocable living trust and maintain a pour-over will.
- Update beneficiary designations (retirement accounts, life insurance, payable-on-death/transfer-on-death designations).
- Review titling on real estate and accounts.
- Consider authorizing your agent in the DPOA to complete trust funding or limited gifting if expressly permitted in the document and consistent with account or policy terms.
Financial Institution Acceptance
Maryland law addresses acceptance of powers of attorney and permits an institution to request an agent’s certification. Presenting the statutory form, the agent’s certification, and any institution-specific affidavits can expedite processing. If an institution refuses an acknowledged power of attorney without a valid statutory reason, remedies may be available. See ET § 17-110 and ET § 17-110.1.
Common Pitfalls to Avoid
- Using outdated or out-of-state forms that will not be readily accepted in Maryland.
- Omitting express authority for gifts or trust funding when those are part of your plan.
- Failing to name successor agents.
- Storing the document where your agent cannot access it.
- Not coordinating the DPOA with your revocable trust and beneficiary designations.
- Waiting until after capacity concerns arise to execute the document.
Practical Tips
- Tell key institutions you have a DPOA and ask if they have any preferred certification forms.
- Give your agent clear written instructions about recordkeeping and periodic reporting to another trusted person.
- Keep a signed original in a safe but accessible place; give your agent a copy and the notary/witness details.
Checklist: Quick Actions
- Choose a primary and at least one successor agent.
- Use Maryland’s statutory form (or a substantially similar form) with two witnesses and a notary.
- Decide whether the POA is immediate or springing.
- State any special powers (gifting, trust funding, beneficiary changes) explicitly.
- Coordinate titling, beneficiary designations, and your revocable trust.
- Inform your agent where the original is stored and how to access it.
- Review the document every 3–5 years or after major life events.
FAQ
Does a Maryland DPOA avoid probate?
No. A power of attorney ends at death. Probate avoidance depends on beneficiary designations, joint titling, and funded trusts, not on a DPOA.
Can my agent make gifts or fund my trust?
Only if the DPOA grants that authority explicitly and it aligns with account or policy terms.
Do banks have to accept my Maryland POA?
Maryland law provides acceptance rules and remedies for wrongful refusal of an acknowledged POA. Institutions can request reasonable certifications. See ET § 17-110 and § 17-110.1.
Should I choose an immediate or springing POA?
Immediate POAs avoid delay; springing POAs can add verification steps. Many clients choose immediate authority plus careful agent selection.
Do I need witnesses and a notary?
Yes. Use two adult witnesses and a notary as reflected in Maryland’s statutory form.
How Our Firm Can Help
We prepare Maryland-compliant durable powers of attorney tailored to your goals and integrate them with revocable trusts, beneficiary designations, and titling to reduce probate exposure. We can also assist with agent certifications and financial institution acceptance. Schedule a consultation.
References
- Maryland General and Limited Power of Attorney Act, ET § 17-101 et seq.
- Durability; when power of attorney becomes effective, ET § 17-105
- Maryland Statutory Form Personal Financial Power of Attorney, ET § 17-202
- Acceptance of and reliance upon power of attorney; agent’s certification, ET § 17-110
- Refusal to accept an acknowledged power of attorney; remedies, ET § 17-110.1
