Powers of Attorney

If you are unable to attend a major event that needs your signature and, often, your signature needs to be witnessed, then here is one effective way of your being able to proceed with that important event but not be physically present.

Here are examples of events when a power of attorney may be used. (1) You are going to be in California the week of the settlement of the marital home. Your spouse is available and if you were to make her your attorney-in-fact (your agent)under a power of attorney, she may sign your name as though you were physically present. (2) You are bedridden and can’t go to the bank so you appoint your trustworthy niece or nephew to become your attorney- in- fact and withdraw funds from your solely owned bank account. (3) You wanted to buy that condo in Florida that you love but could not afford and then your real estate agent says it has been substantially reduced in price. You do not want to travel to Florida so you grant a special power of attorney to your cousin whom you trust. The special power of attorney that you grant to your cousin cannot be used as broadly as a General Power of Attorney. A Special Power of Attorney is limited only to the settlement of the newly acquired condo in Florida.

A General Power of Attorney is the broadest form of a power of attorney and enables your attorney- in- fact (agent) to do almost anything you could do. Here is a gross example of the breath of the General Power of Attorney. Let’s assume you have a gold tooth in your jaw. With the general power of attorney, your attorney- in- fact could sell the gold tooth to a gold dealer. Of course, it is unlikely that you could find a gold dealer who would want to buy the gold or that the principal would ever consent to have the gold removed from his or her mouth. The example is to demonstrate that a general power of attorney is very broad and, with it, your agent can do almost anything you can do.

As the volume of transactions in real estate and banking increase and with the rise in incidents of identity theft, persons who make decisions as to whether they will accept the power of attorney presented to them, such as administrators, want greater security that the document presented is real. When a title company, a banker, or other person refused to accept a poorly drafted document, the question arose as to whether the attorney-in-fact (agent) had the authority to achieve what he/she was attempting to achieve . To aid the attorney-in-fact in achieving what the principal (the person who has created the power of attorney) desires and to correct the circumstances that may have caused concern for the person asked to honor the power of attorney, legislation was enacted. The Maryland State Legislature sought to meet the following described needs by enacting legislation to deal with a wide range of problems associated with the use of a power of attorney. These include providing standard language to ensure that the attorney- in- fact had the authority to act on behalf of his or her principal and providing greater protection to title companies, bankers, and other business persons asked to honor the power of attorney in order to achieve the intended result of the principal. These objectives were achieved by codifying the exact language to be used in the power of attorney. When utilized, there will be no question about whether the party presenting the document has authority to act or not act and so the attorney-in-fact (agent) will be able to achieve a result on behalf of the principal.

The new law protects three parties: the principal, the attorney- in- fact and the person asked to honor the power of attorney. If you have a power of attorney drafted prior to the enactment of the new law in 2010, you should have that power of attorney changed to include the acceptable language. This should be done soon so as not to have the embarrassing situation of your agent or attorney- in- fact being denied what you have sought to achieve, or worse, be unable to complete an important transaction that may cost you dearly in the loss of a significant amount of money.

The new law also protects principals because if the person who is asked to honor the power of attorney arbitrarily denies to do so , the principal may obtain damages against the person or entity that arbitrarily refused to honor the power of attorney. Those sanctions/damages are awarded so long as the language in the statute is utilized or is substantially similar.

Fredric Antenberg has drafted hundreds of powers of attorney and can provide you with a comprehensive power of attorney. Call Fred at 410-730-4404 to obtain a free initial consultation. Fred has his office is Columbia, Maryland, and provides legal services in Howard and surrounding counties in Maryland.