Baltimore, MD asked in Family Law and Elder Law for Maryland

Q: What if a General Power of Attorney document was notarized but later found there were not two witnesses on the document?

My mother, now 98 years of age, submitted a General Power of Attorney form in 2013 and the bank officer notarized it. Now it is not accepted as Verification of Receipt of Benefits because it "does not explicitly authorize the attorney in fact to handle retirement transactions and additionally the Power of Attorney must be witnessed by two adults".

The General Power of Attorney says " fact to act in my capacity to do every act that I may legally do through an attorney in fact."

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1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Estate Planning Lawyer
  • Rockville, MD
  • Licensed in Maryland

A: Maryland law requires that any POA executed on or after October 1, 2010, be notarized and witnessed by two persons in the presence of each other and the principal of the POA. However, a Notary Public can act as one of the two witnesses, so you might argue that one witness plus the Notary is sufficient, if there was another witness. If only the Notary signed, and there is no other witness, then you have a real problem. If that is the case, then either your mother can sign a new POA if she is competent (and this time use a lawyer to make sure it is done correctly), or somebody will have to petition the court to be apointed your mother's guardian to act for her. The whole point of a POA is to avoid having to go to court and go through guardianship proceedings, so getting that document done correctly is crucial.

If the POA is notarized and witnessed by one other person, and the financial institution continues to reject the POA on either that basis or on the basis that it does not have the specific language regarding retirement accounts that they will honor, then you can do one of two things: (1) petition a court to construe the POA and issue and order declaring that it is valid and enforceable for the purpose(s) you are attempting to use it for (e.g., the general grant of power is sufficient to cover any act the principal could have done with regard to her retirement accounts); or (2) petition to be appointed guardian of your mother.

Unfortunately, it does not sound as though your mother used a POA that complies with the Maryland statutory power of attorney act, which would compel the financial institution to honor it or be answerable in damages and payment of your attorney fees to have it enforced.

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