Delaware Durable Power of Attorney

Introduction

Key Things to Know

1. 1

   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.

2. 2

   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.

3. 3

   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.

4. 4

   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.

5. 5

   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.

6. 6

   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.

7. 7

   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.

Delaware Requirements for Durable Power of Attorney

• Sign Before a Notarial Officer and One Witness

  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.

• 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. Choose a witness who is neither family nor a beneficiary.

• Durability Language Should Be Express

  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.

• Effective Date and Springing Powers

  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.

• Optional Statutory Short Form

  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.

• Record It for Real-Property Use

  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.

• Special Powers Need Express Language

  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.

• Revocation and Agent Certification

  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.