The System Works – Maryland’s New Power of Attorney Law

September 8, 2010
4127742451 9c7a92ef6e m The System Works – Maryland’s New Power of Attorney Law

Image by The U.S. National Archives via Flickr

Gideon’s Trumpet

We all love David vs. Goliath stories.  These are especially satisfying when they involve the legal process.  One of the most celebrated cases involving a huge underdog was Gideon v. Wainwright.  In 1961, Clarence Earl Gideon was found guilty of a crime in a Florida court after having to defend himself since he could not afford an attorney.  From prison, Gideon researched and then filed appeals all the way up to the U.S. Supreme Court, asserting that he should have been provided free counsel.  In 1963, the Supreme Court agreed, and ever since, indigent defendants have been provided with a public defender.  Check out “Gideon’s Trumpet” (1980), starring Henry Fonda, to see a dramatization of this story (it’s a bit dry, but certainly educational).

Loretta’s Law

Recently, Maryland passed “Loretta’s Law”, which has shades of Gideon’s efforts and successes.  This new law tightens the rules surrounding the use of Maryland Powers of Attorney.  The background leading up to its passage reminds us of how just one person being wronged can lead to great changes in American jurisprudence.

In 2001, Loretta Soustek, an elderly woman in Maryland who was falling victim to dementia, signed a power of attorney over to her niece, which allowed the latter to take full control over her finances.  Over the next four years, the niece stole nearly $450,000 to pay off her own debts and build herself a new house before being caught and arrested.

Ms. Soustek’s grandnieces Belinda Huesman and Brenda Hodgson, upon being appointed Ms. Soustek’s guardians, discovered the inconsistencies.  They then began a campaign over several years that led to the passage of the Maryland General and Limited Power of Attorney Act, also known as “Loretta’s Law”, this past May. For further background, see  this 2008 article from the Annapolis Gazette.

New Maryland Power of Attorney Requirements

We previously discussed the functions and history of powers of attorney in this August post.  The new Maryland law includes some very interesting features that are being hailed as better protections to the elderly and others who sign such forms.

As in most states, the new Maryland statute provides power of attorney forms that may directly be used by citizens.  As discussed in this earlier post regarding HIPAA and estate planning, some entities are protecting themselves by refusing to accept power of attorney forms where their patients or customers had earlier signed privacy forms, regardless of their clients’ stage of incapacity or dementia.

However, as pointed out in Maryland attorney Ann Shaw’s informative website, a great benefit of the new law is that “a person may not require an additional or different form of a power of attorney for any authority granted in a statutory form power of attorney.”  In other words, starting on October 1, if you use the new Maryland state form and it is validly executed, it cannot be rejected by hospitals, doctors, banks, etc. in Maryland.  If rejected, the entity may be subject to attorney fees and costs created by their actions.

Additionally, the new statute also enables certain enumerated people with the right to petition the court to review the designated agent’s conduct, including the principal’s guardian, spouse, or other potential beneficiaries.  The statute also requires two witnesses to sign the power of attorney in front of the principal and each other.

Overall, this seems to be a very positive development that hopefully other states will follow as well.

 The System Works – Maryland’s New Power of Attorney Law
 The System Works – Maryland’s New Power of Attorney Law

Scott

Scott R. Zucker, Esq. is the owner of The Zucker Law Firm PLLC, located just outside the Capital Beltway in Annandale, within five miles of the City of Fairfax, the county seat of beautiful Fairfax County, Virginia. The firm focuses mainly on estate planning services for Virginia, Maryland and Pennsylvania clientele, and seeks to do so in an affordable and approachable way. People interested in learning more can contact Scott by phone or email.

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6 Responses to The System Works – Maryland’s New Power of Attorney Law

  1. belinda fraley huesman
    November 12, 2010 at 8:44 pm

    Thank you for posting this. This is such important legislation. Your input is so very valuable. This was sheer determination to help elderly people such as my Aunt Loretta to bring awareness as far as how often this happen. THANK YOU!!!
    BELINDA FRALEY HUESMAN AND BRENDA FRALEY HODGSON

    • Scott
      November 12, 2010 at 10:20 pm

      Ms. Huesman and Ms. Hodgson–

      Words cannot express how honored I am to have you respond to me.

      Please pardon my gushing, but you took one person’s shocking and shameful display of selfishness and turned it into legislation that will undoubtedly be the model for reforms in states all over the country. Your persistence and focus on what is fundamentally right has led to the protection of the most vulnerable in our society, which is what the legal process should be all about. Your example is the reason many of us went to law school in the first place. You represent what all of us wish to have in our own families. You are heroes.

      So, no, THANK YOU!!!

      With the deepest regard and respect,
      Scott

  2. Sharonlynn
    November 30, 2010 at 6:02 pm

    I just recently learned that a family had stolen my father’s information, social security, birth date, birth certificate and used that information to divert money from my elderly father’s checking account for years. You would never believe how hard it is to get criminal actions against the person committing the fraud. You would also think that being the daughter of a loved one would be good enough to get the authorities involved but guess what? NO. No, it matters not if someone is abusing, stealing furniture and stealing your mother or father’s bank account, if you are the daughter or the son, you can’t get help for your own parents. You matter as a nothing. In the eyes of the law, you have to have Power of Attorney to get a criminal action going. You think that’s right? You think it’s fair to push people to do something just to get something accomplished is fair? Do you think it is fair to tell children that you cannot help your parents if there is a crime being committed against your own parent? People have changed laws claiming that it is for everyone’s good however, when you change the law, you also change your rights to get help for someone who needs it. I should not have to be forced to have power of attorney over my father to help him.

  3. Sharonlynn
    November 30, 2010 at 6:10 pm

    My point is, everytime someone gets mad about something nowadays they can’t wait to produce and add on another law. Let’s change this law, let’s change that law, let’s name it after the victim. Law this, against the law that, for the law here, and go after the law there. John’s Law, Jude’s Law, Joseph, Ann and Mary Law. I am sick of people who have too much time on their hands. I am sick of LAW! The laws keep changing in the ‘name’ of someone who wants to see their favorite name attached to it and what has it done? It has forced people to take power of attorney of a parent just to get justice and prosecute a person who stole from the parent. They made everything difficult. Do us all a favor. Stay home and shut up.

  4. Sharonlynn
    November 30, 2010 at 6:20 pm

    Not only am I forced to have power of attorney, which is a process that prolongs criminal justice for my father, but now it will probably be harder to obtain and the process will take longer and thus, the process of bringing a criminal/criminals to justice is prolonged even further. Thanks. Nobody should be forced to take power of attorney to report and take action against criminals. I have an entire family I need to get after and I am met with, “Do You Have Power Of Attorney?” NO! I Have To Get That. Now, not only do I need to get POA, but who knows how long it’s going to take considering the new law. I have no Interest except to speak for my father and get justice. Is This FAIR? And you wonder why it’s a long process to catch a criminal when the blood is right there in their hand? You wonder why? Because An Angry Person Got Mad At The Entire Process Instead Of Focusing On The Criminal At Hand. Now We Are All Screwed To Get Faster Results. I work. I don’t have time to go through this POA issue let alone take more time to get the damn certificate that reads, “You can now help your parent!”

    • Scott
      December 1, 2010 at 1:37 pm

      Ms. Lynn—

      Thank you for your comments. I am so sorry that you are experiencing this frustrating time.

      My expertise is not in criminal law and I don’t know enough about your particular facts, so what I suggest here is not given as legal advice (unfortunately, my insurer would also have me refer you to my website’s disclaimer here). Instead, I have provided some suggestions and links to some potentially helpful resources where appropriate below. I was wondering if the following might help:

      1) This link is the FAQ for the Maryland Judiciary. You might pay particular attention to the sections on “Criminal Complaint” and “Victims”, which may provide you with some additional options.

      2) According to that site, it seems to be true that only the victim or a minor in his or her custody is technically allowed to file charges against the wrongdoer. However, I might suggest that having your father sign a power of attorney over to you is a relatively simple and inexpensive procedure that you can get done at many law firms.

      3) Ironically, Loretta’s Law at Md. Code Ann. Estates and Trusts §§ 17-201, et seq. also provides forms you may be able to use for your situation.

      4) Do I correctly understand you to believe that Loretta’s Law created the power of attorney requirement in your case? I do not wish to further anger or frustrate you, but I humbly submit that your difficulties are based on rules unrelated to Loretta’s law. The new law merely revised the use and format of powers of attorney in MD. Powers of attorney predate our country and have existed for thousands of years.

      5) There are many resources that are truly available to you for help, including plenty of qualified criminal law and elder law attorneys in Maryland. Additionally, remember that the law is not static and instead attempts to be suited for the times. In fact, perhaps you can start a campaign to revise the law yourself.

      I hope this is helpful. Good luck, don’t give up, and best wishes for success in your situation.

      Scott

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