Effective October 1, 2010, a new law regarding powers of attorney, known as “Loretta’s Law” (named after Loretta Soustek, an elderly woman who’s life savings was stolen by her niece using an unattested power of attorney) has gone into effect and greatly changed the law in Maryland regarding what a power of attorney must contain. The act is known as the Maryland General and Limited Power of Attorney Act (Annotated Code of Maryland, Estates and trust Article, §§’s 17-101 to 17-204). For more on Loretta Soustek’s story see here.
The biggest change in the new law is requirement of the attestation of two witnesses to the principal’s signature. The notary may be one of the witnesses. Previously in Maryland no witnesses were required. The new law is an example of a nationwide trend to standardize and strengthen the requirements regarding powers of attorney (POAs). A similar law was passed in Pennsylvania several years ago.
Specifically the act requires that POAs executed on or after October 1, 2010 be:
- In writing;
- Signed by the principal or by some other person for the principal, in the presence of the principal, and at the express direction of the principal;
- Acknowledged by the principal before a notary public; and
- Attested and signed by two or more adult witnesses who sign in the presence of the principal and in the presence of each other; the notary may serve as one adult witness
While Maryland’s Act does not, like Pennsylvania, require the attorney-in-fact to certify as to the validity of the power of attorney and agent’s authority (i.e. the agent to sign that they are not aware of any disability of or revocation by the principal), such AIF certification is wise when available to insure credibility and prevent any later attack as to the validity of the POA.
As had been the law in Maryland, any POAs executed with regards to a recorded instrument (e.g. deed, deed of trust, etc.) must be recorded in land records themselves.
Powers of attorney executed in a state other than Maryland and military powers of attorney will be valid and enforceable in Maryland as long as they comply with the applicable state/military requirements for a POA at the time it was executed.
While statutory forms (a 20 page General Personal Financial POA and a 6 page Limited POA) were provided with the new law, and can be found here under the aforementioned code sections, the forms are very long and can be somewhat confusing. Anyone contemplating the use of a power of attorney is strongly encouraged to seek competent legal counsel who is able to craft a document tailored to the principal’s particularized circumstances and needs.
Gary E. Sabo, Esq.