Power of Attorney and Health Care – General – Maryland
A “durable power of attorney” is a power of attorney by which a principal designates another as an attorney in fact or agent and the authority is exercisable notwithstanding the principal’s subsequent disability or incapacity. When a principal designates another as an attorney in fact or agent by a power of attorney in writing, it is a durable power of attorney unless otherwise provided by its terms.
Any act done by the attorney in fact or agent pursuant to the power of attorney during any period of disability or incompetence or uncertainty as to whether the principal is dead or alive has the same effect and inures to the benefit of and binds the principal as if the principal were alive, competent, and not disabled.
If a guardian is appointed for the principal, the attorney in fact or agent must account to the guardian rather than the principal. The guardian has the same power the principal would have but for his disability or incompetence to revoke, suspend, or terminate all or any part of the power of attorney or agency.
Statutory provisions regarding durable powers of attorney do not apply to an instrument or portion of an instrument that is an advance directive appointing a health care agent.
The death, disability, or incompetence of a principal who has executed a power of attorney in writing does not revoke or terminate the agency as to the attorney in fact, agent, or other person who, without actual knowledge of the death, disability, or incompetence of the principal, acts in good faith under the power of attorney or agency. Unless otherwise invalid or unenforceable, any action taken binds the principal and his heirs, legatees, and personal representatives.
In the absence of fraud, an affidavit executed by the attorney in fact or agent and stating that he did not have, at the time of doing an act pursuant to the power of attorney, actual knowledge of the revocation or termination of the power of attorney by death, disability, or incompetence, is conclusive proof of the non-revocation or non -termination of the power at that time. If the exercise of the power requires execution and delivery of any instrument which is recordable, the affidavit when authenticated for record is likewise recordable.
Any provision for revocation or termination contained in the power of attorney takes precedence over any statutory provision.
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