MD Senate Bill 309 | NNA
Law

MD Senate Bill 309

Notary Law Update: MD Senate Bill 309

State: Maryland

Summary:

Maryland enacts a comprehensive general and limited power of attorney act that requires a power of attorney to be acknowledged before a Notary Public and witnessed by two witnesses. The Act permits the Notary to act as one of the witnesses, but the NNA recommends as a best practice that the Notary only serve in the capacity of Notary Public for the transaction.

Signed:  May 20, 2010

Effective:  October 01, 2010

Chapter: 690

Affects:

Repeals Section 13-601 through 13-603 (Estates and Trusts) and adds Section 17-101 through 17-204 (Estates and Trusts) of the Annotated Code of Maryland

Changes:
  1. Allows the principal to direct another person to sign the principal’s name on the power of attorney in the principal’s presence.
  2. Clarifies that a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.
  3. Clarifies that the act applies to all powers of attorney except: (a) A power that is coupled with an interest in the subject of the power, is given as security, or is given for consideration, regardless of whether the power is held for the benefit of the agent or another person, including a power given to or for the benefit of a creditor in connection with a credit transaction;  (b) An advance directive appointing a health care agent or any other power to make health care decisions; (c) A proxy or other delegation to exercise any right with respect to an entity, including voting rights or management rights or both, or a delegation of authority to execute, become a party to, or amend a document or agreement governing an entity or entity ownership interest; (d) A power created on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose; (e) A power created as part of, or in connection with, an agreement establishing an attorney and client relationship; (f) A power of attorney that states that it is not subject to the act; (g) A power authorizing another to prepare, execute, deliver, submit, or file, on behalf of an entity or the governing body or management of an entity, a document or instrument with a government or governmental subdivision, agency, or instrumentality or with a third party; (h) A power or other delegation of authority contained in a document or agreement governing or binding on an entity that authorizes a person to take action with respect to the entity; and (i) A power with respect to an entity created in accordance with authorization provided by a federal or state statute that specifically contemplates creation of the power.
  4. States that a power of attorney must be: (1) signed by the principal; (2) acknowledged before a Notary Public or other officer authorized to take acknowledgments; and (3) witnessed by two witnesses, one of whom may be the Notary.
  5. Prescribes statutory power of attorney forms.
Analysis:

Maryland enacts a revised general and limited power of attorney statute. It allows another person to sign the principal’s name on the power of attorney as long as this is done at the principal’s direction and in the principal’s presence; however, there is no indication whether this person may be the Notary or an individual given powers by the power of attorney document. The act also states that the power must be acknowledged before a Notary and witnessed by two witnesses. The act specifically states that the Notary may act as both a Notary and witness, but the NNA strongly recommends that any Notary asked to perform an acknowledgment on a power of attorney refuse to serve as a witness and ask the principal to obtain two impartial witnesses to sign the power of attorney.

Read the bill text.

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