Delaware Durable Power of Attorney
A Delaware durable power of attorney must be signed before a notarial officer and one unrelated adult witness under Del. Code tit. 12, Section 49A-105.
Introduction
A durable power of attorney is a legal document that lets you name someone you trust to manage your money, property, and business matters if you cannot handle them yourself. In Delaware that person is called your agent, or attorney-in-fact. The word durable is the key: a durable power of attorney keeps working even if you later become incapacitated and can no longer make decisions, which is usually why people create one. Delaware governs this instrument through the Durable Personal Powers of Attorney Act at Del. Code tit. 12, Chapter 49A. Under Del. Code tit. 12, Section 49A-105, a personal power of attorney must be in writing, signed and dated by you, signed in the presence of a notarial officer, and signed in the presence of one adult witness who is neither related to you by blood, marriage, or adoption nor entitled to any portion of your estate. Delaware treats a power of attorney as durable when it contains words showing you intend the authority to survive incapacity, under Del. Code tit. 12, Section 49A-104. Delaware also publishes an optional statutory form at Del. Code tit. 12, Section 49A-301. This guide covers the financial and general durable power of attorney only; a health-care power of attorney is a separate Delaware instrument. Attorney review is available as an option before you sign.
Key Things to Know
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A durable power of attorney lets someone act for you. It names an agent, also called your attorney-in-fact, to handle your money, property, and business matters. Durable means the document keeps working even if you later become incapacitated, which is usually why people set one up.
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You need both a notary and a witness. Under Del. Code tit. 12, Section 49A-105, a Delaware personal power of attorney must be in writing, signed and dated by you, signed in the presence of a notarial officer, and signed in the presence of one adult witness. The notary and the witness are both required, not alternatives.
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Your witness must be unrelated and not an heir. Under Del. Code tit. 12, Section 49A-105, the one adult witness may not be related to you by blood, marriage, or adoption, and may not be entitled to any portion of your estate under your then-existing will, codicil, or trust instrument.
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It is durable when you say so. Delaware treats a power of attorney as durable when it contains words showing you intend the agent's authority to survive your incapacity, under Del. Code tit. 12, Section 49A-104. The statutory NOTICE at Section 49A-105(b) adds that, unless you specify otherwise, the authority continues even if you become incapacitated. State your intent expressly.
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It works right away unless you delay it. Under Del. Code tit. 12, Section 49A-109, a personal power of attorney is effective when executed unless it states that it becomes effective at a future date or upon a future event, such as your incapacity. A power of attorney that waits for a future event is called springing.
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Some powers need express language. Under Del. Code tit. 12, Section 49A-201(b), your agent may create or change a trust, make a gift, change survivorship or beneficiary designations, delegate authority, or disclaim an interest only if the document expressly grants that authority.
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Real-property use means recording. A power of attorney used to convey or encumber Delaware real estate is recorded under Title 25, not Chapter 49A. Under Del. Code tit. 25, Section 151, a letter of attorney concerning lands is acknowledged or proved, certified, and recorded in the recorder's office for the county where the land is located.
Key decisions before you file
Before you file a Durable Power of Attorney in Delaware, a few decisions shape the document: which option to choose and what each one means. The Durable Power of Attorney guide walks through them.
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Delaware Requirements for Durable Power of Attorney
Under Del. Code tit. 12, Section 49A-105, the power of attorney must be in writing, signed and dated by you (or in your name by another adult in your presence and at your express direction), signed in the presence of a notarial officer, and signed in the presence of one adult witness. The notary and the witness are both required, not alternatives.
Under Del. Code tit. 12, Section 49A-105, the one adult witness may not be related to you by blood, marriage, or adoption, and may not be entitled to any portion of your estate under your then-existing will, codicil, or trust instrument. Choose a witness who is neither family nor a beneficiary.
Delaware treats a power of attorney as durable when it contains words showing you intend the agent's authority to survive your incapacity, under Del. Code tit. 12, Section 49A-104. The statutory NOTICE at Section 49A-105(b) adds that, unless you specify otherwise, the authority continues even if you become incapacitated. State your incapacity intent expressly rather than relying on one line.
Under Del. Code tit. 12, Section 49A-109, a personal power of attorney is effective when executed unless it states that it becomes effective at a future date or upon a future event, such as your incapacity. A power of attorney that waits for a future event is called springing; the statute also sets how incapacity is determined when no one is named to decide it.
Delaware publishes an optional statutory form durable personal power of attorney at Del. Code tit. 12, Section 49A-301. The statute says the form may, but need not, be used. It includes the statutory NOTICE to the principal and the agent's certification the agent signs before acting.
A power of attorney used to convey or encumber Delaware real estate is recorded under Title 25, not Chapter 49A. Under Del. Code tit. 25, Section 151, a letter of attorney concerning lands is acknowledged or proved, certified, and recorded in the recorder's office for the county where the land is located.
Certain high-risk powers, sometimes called hot powers, are allowed only if your document specifically grants them. Under Del. Code tit. 12, Section 49A-201(b), your agent may create or change a trust, make a gift, change survivorship interests or beneficiary designations, delegate authority, or disclaim an interest in an estate or trust only when the document expressly says so.
Under Del. Code tit. 12, Section 49A-110, you may revoke the power of attorney or the agent's authority, and a later power of attorney does not revoke an earlier one unless it says so. Separately, under Section 49A-105(c) your agent has no authority to act until the agent executes and affixes the agent's certification to the document.
Frequently Asked Questions
A durable power of attorney is a legal document that lets you name an agent, also called an attorney-in-fact, to manage your financial and property matters. It is called durable because it keeps working even if you later become incapacitated, rather than ending when you lose the capacity to make decisions. In Delaware, a power of attorney is durable when it contains words showing you intend the authority to survive incapacity, under Del. Code tit. 12, Section 49A-104.
The difference is what happens if you become incapacitated. A durable power of attorney is written so the agent's authority survives your incapacity. Under Del. Code tit. 12, Section 49A-104, Delaware treats a power of attorney as durable when it contains words showing you intend the authority to be exercisable despite your later incapacity. A regular, nondurable power of attorney does not include that intent, so the agent's authority can end when you can no longer make decisions. State your durability intent expressly in the document.
Yes. Under Del. Code tit. 12, Section 49A-105, a Delaware personal power of attorney must be signed in the presence of a notarial officer. It must also be signed in the presence of one adult witness who is neither related to you by blood, marriage, or adoption nor entitled to any portion of your estate. Both the notary and the witness are required, which is different from states that allow a notary or witnesses as alternatives.
A springing power of attorney takes effect only on a future date or event rather than at signing. Under Del. Code tit. 12, Section 49A-109, a Delaware personal power of attorney is effective when executed unless it provides that it becomes effective later. If it springs on your incapacity and no one is named to determine incapacity, it becomes effective on a written determination by a physician or by the Court of Chancery or other court that you are incapacitated.
Under Del. Code tit. 12, Section 49A-201(b), an agent may take certain acts only if the power of attorney expressly grants the authority. These include creating, amending, revoking, or terminating a trust, making a gift, creating or changing rights of survivorship, changing a beneficiary designation, delegating authority, and disclaiming an interest in an estate or trust. Without express language, the agent cannot exercise these powers.
Under Del. Code tit. 12, Section 49A-105(c), the agent has no authority to act until the agent executes and affixes the agent's certification to the power of attorney. Once acting, Del. Code tit. 12, Section 49A-114 requires the agent to act within the scope of authority granted, in good faith, in line with your reasonable expectations or otherwise in your best interest, and to keep in regular contact with you.
Under Del. Code tit. 12, Section 49A-110, a personal power of attorney terminates when you revoke it or revoke the agent's authority. Executing a new power of attorney does not revoke an earlier one unless the new document says so. A third party who acts in good faith without actual knowledge of the revocation is protected, so give written notice of the revocation to the agent and to any bank or institution holding the old document.
If the power of attorney will be used to convey or encumber Delaware real estate, it is recorded under Title 25. Under Del. Code tit. 25, Section 151, a letter of attorney concerning lands, once acknowledged or proved and certified, is recorded in the recorder's office for the county where the land is located, and the record or an office copy is sufficient evidence. Chapter 49A grants the real-property authority; Title 25 supplies the recording mechanism.