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Q and A for Wills, POAs and Guardianships

Yollette Atkinson March 7, 2025

Creating Wills, Powers of Attorney, and Distinguishing Them from Guardianships in Maryland

When it comes to planning for the future, many individuals in Maryland consider creating important legal documents such as wills, powers of attorney, and guardianships. These tools can provide clarity and guidance during times of uncertainty or incapacity. Understanding the difference between them is crucial for making informed decisions about how to protect your interests and the interests of your loved ones. Below is a comprehensive Q&A blog to help demystify these concepts in Maryland.

Q1: What is a Will and Why Should I Have One in Maryland?

A Will is a legal document that expresses your wishes regarding the distribution of your property and assets after your death. In Maryland, having a will allows you to name beneficiaries who should receive your belongings and appoint an executor to carry out your instructions. Without a will, your estate may be distributed according to Maryland’s laws of intestacy, which might not reflect your desires.

Key elements of a will include:

  • Appointment of an executor

  • Designation of beneficiaries

  • Instructions for distribution of assets

  • Appointment of guardians for minor children, if applicable

  • Testamentary trust, if so desired

Why is it important? A will helps ensure that your assets go to the people or causes you care about, and it provides a clear process for your family to follow. It also helps minimize confusion or disputes after your death.

Citation:
Maryland State Bar Association. (n.d.). Wills and Trusts. Retrieved from https://www.msba.org

Q2: What is a Power of Attorney (POA) and How Does it Differ from a Will in Maryland?

A Power of Attorney (POA) is a legal document that grants someone (referred to as the “agent” or “attorney-in-fact”) the authority to act on your behalf for a specific purpose, such as managing your finances, making medical decisions, or handling legal matters. It is typically used when you are still alive but unable to make decisions for yourself due to illness, injury, or absence.

Key differences between a POA and a Will:

  • A POA is only effective while you are alive, often during a period of incapacity, whereas a will only takes effect after your death.

  • A POA gives someone authority to manage your affairs or make decisions for you, but a will deals with the distribution of your assets and appointments after your passing.

  • A POA can be revoked at any time if you regain capacity or if you no longer want that individual to make decisions for you.

In Maryland, there are different types of powers of attorney:

  • General POA: Broad powers to make decisions on your behalf.

  • Limited POA: Specific and limited powers to make decisions on your behalf.

  • Medical POA: Specifically for healthcare decisions.

Citation:
Maryland Courts. (n.d.). Power of Attorney. Retrieved from https://www.courts.state.md.us

Q3: What is Guardianship and How Does it Differ from a Will or POA in Maryland?

Guardianship is a legal process by which a court appoints an individual or organization (a “guardian”) to care for another person (the “ward”) who is unable to care for themselves due to incapacity. This is different from a power of attorney because a guardian’s authority is granted by the court rather than through a document executed by the person in need of care.

Key differences between guardianship, POA, and a will:

  • A guardianship is typically needed when someone is incapable of making decisions on their own, either for health reasons, disability, or other mental impairments. Unlike a POA, guardianships are court-ordered, and the individual under guardianship cannot revoke the arrangement.

  • A POA allows you to choose an agent while you are still capable of making decisions. In contrast, a guardianship is imposed after a person’s incapacity, and the court decides who will act on behalf of the ward.

  • A will deals only with posthumous matters, like distributing your estate or appointing guardians for your minor children.  It does not involve decisions about an adult’s care during their life.

Guardianship types in Maryland include:

  • Guardianship of the Person: When the guardian makes decisions about personal care, housing, and medical needs.

  • Guardianship of the Property: When the guardian manages the ward’s finances and assets.

Citation:
Maryland Guardianship Laws. (n.d.). Guardianship of Adults. Retrieved from https://www.courts.state.md.us

Q4: Can I Use a Will, Power of Attorney, and Guardianship Together in Maryland?

Yes! These tools can often work together as part of a comprehensive estate and life planning strategy.

For example:

  • A Will can name a guardian for your minor children and determine how your assets are to be distributed upon your death.

  • A Power of Attorney can give someone the authority to manage your finances if you become incapacitated, mentally or physically.

  • A Guardianship may be necessary if you are no longer capable of making decisions due to illness or mental incapacity, and no power of attorney has been established.

By having all three documents in place, you ensure that your loved ones are prepared and that your wishes are respected during your life and after your death.

Citation:
National Guardianship Association. (n.d.). Types of Guardianship. Retrieved from https://www.guardianship.org

Q5: How Do I Create a Valid Will, POA, or Guardianship in Maryland?

Creating a valid Will:

  • In Maryland, a will must be written, signed by you, and witnessed by at least two individuals who are not beneficiaries under the will. The witnesses must see you sign the will or acknowledge your signature.

  • It’s important to consult an attorney to ensure the will is legally sound and accurately reflects your wishes.

Creating a valid Power of Attorney:

  • A POA in Maryland must be signed by you and acknowledged by a notary public. For a Durable POA, it is particularly important that the document includes the necessary language specifying that it remains in effect even if you become incapacitated.

  • For medical powers of attorney, the document must also be signed by you and witnessed, though specific requirements vary depending on the type of decisions you’re authorizing.

Establishing Guardianship:

  • Guardianship must be court-ordered, and it typically involves filing a petition with the appropriate Maryland court. You will need to present evidence of incapacity, and a judge will appoint a guardian based on the best interests of the person needing care.

Citation:
Maryland Legal Aid. (n.d.). How to Set Up a Guardianship. Retrieved from https://www.mdlab.org

Q6: Can I Change or Revoke These Documents?

Wills can be changed or revoked by creating a new will or a written document known as a codicil. It’s essential that any changes be made in accordance with Maryland law to avoid confusion or disputes.

Power of Attorney can be revoked at any time as long as you are still mentally competent. To revoke it, you must notify your agent and anyone else who may rely on the document (e.g., financial institutions).

Guardianships cannot be revoked by the ward, as they are court-ordered. However, if the ward regains capacity or if a guardian is no longer fit for the role, a new guardianship order can be requested.

Citation:
Maryland Department of Aging. (n.d.). Revoking a Power of Attorney. Retrieved from https://www.aging.maryland.gov

Conclusion

While wills, powers of attorney, and guardianships are all tools for planning for the future, they serve different purposes and apply in different circumstances. In Maryland, understanding how each of these works is essential for ensuring that your wishes are respected and your loved ones are protected. Whether you’re preparing for your death, incapacity, or seeking to protect someone who can no longer care for themselves, it’s always a good idea to consult with an experienced attorney who can help guide you through the process.

If you’re ready to create or update your will, power of attorney, or guardianship, consider reaching out to a Maryland estate planning lawyer for expert guidance.

At Atkinson Law, we listen to all our clients and protect their interests so they can receive a positive legal outcome.  We’ll work with you and give you the best possible recommendation for your future.  To learn more about estate planning and powers of attorney, contact us today by calling (410) 882-9595 or visiting our website.