What Is a Delaware Power of Attorney?
A Delaware power of attorney lets you grant someone the right to perform certain actions on your behalf. Typically, these include financial matters, healthcare decisions, or legal tasks. The agreement typically involves two key parties:
- Principal: You, the person granting the powers laid out in the document to someone else.
- Agent: The person whom you appoint to act on your behalf.
You must write the power of attorney while you have the mental and physical capacity to create the document. You can revoke the power of attorney at any time.
The agent you name must act in your best interests, not in their own, when carrying out the duties you include in the POA. They may need to provide an accounting of their decisions and actions, especially if they go against any express wishes laid out in the power of attorney or other related documents.
Types of Powers of Attorney in Delaware
General powers of attorney cover a variety of possible concerns. Other power of attorney types offer the agent control of only specific circumstances or needs. For example, a Delaware corporate power of attorney allows your agent to make business decisions, and a medical power of attorney only covers healthcare matters.
Before you figure out how to create a power of attorney in Delaware, consider the right type for your needs, including whether you want a durable or non-durable power of attorney.
Durable vs. Non-Durable POAs
A Delaware durable power of attorney is lasting, with no noted end date. Even if you become incapacitated, the agent you named would still have the authority laid out in the agreement. According to 12 DE Code § 49A-104, powers of attorney are only durable if they contain explicit phrasing.
Non-durable powers of attorney, on the other hand, typically cover only a stated period or end when specific circumstances occur. For example, a non-durable power of attorney will automatically end if you become incapacitated.
Medical/Healthcare POA
A medical power of attorney in Delaware grants your agent the power to make medical decisions on your behalf if you cannot make them for yourself.
A durable medical power of attorney in Delaware is different from a living will, which lays out the specific steps you want your agent to take to meet your healthcare needs in the event that life-sustaining treatment becomes necessary. In Delaware, you can combine these documents into an advance directive.
Financial POA
A financial power of attorney in Delaware grants your agent the right to make financial decisions on your behalf, including:
- accessing accounts
- making payments
- managing investments
- handling other financial needs
Durable (Financial)
Stays in effect even when the principal becomes incapacitated.
Signing Requirements: Notary public and one witness.
Medical
Gives an agent legal permission to make medical or health care decisions should the principal become incapacitated.
Signing Requirements: Two witnesses. If you are physically unable to sign, you can direct another person to sign for you (§ 2503(b)(1)).
Limited (Special)
Allows the principal to be more specific regarding what the agent can do on his or her behalf.
Signing Requirements: Notary public and one witness.
Non-Durable (General)
Ensures that the designated agent has the authority to act on behalf of the principal in financial decisions regarding any and all property (including real estate).
Signing Requirements: Notary public and one witness.
Springing
"Springs" into action at a future time and only when a specific event occurs, such as the incapacitation of the principal.
Signing Requirements: Notary public and one witness.
Motor Vehicle (Form MV386)
Enables the principal to choose an agent who will act on their principal’s behalf regarding any interaction with the Delaware Department of Motor Vehicles, dealerships, and mechanics.
Signing Requirements: Notary public.
Real Estate
Grants an agent the authority to act on behalf of another person in managing their real estate affairs.
Signing Requirements: Notary public and one witness.
Tax (Form 2848)
Designates an agent to handle tax-related matters.
Signing Requirements: Principal and attorney-in-fact.
Minor (Child)
Enables parents to temporarily transfer responsibilities to an agent.
Signing Requirements: Notary public and one witness.
Revocation
Terminates the authority granted to an agent.
Signing Requirements: Notary public and one witness.
How to Write a Power of Attorney in Delaware
12 DE Code § 49A-105 notes that the power of attorney must be written, not verbal. To write a valid power of attorney, you must sign it in the presence of a notary and a witness who is not related to you or entitled to a share in your estate. It should include:
- the names and addresses of both you and the agent
- the effective date
- the powers granted
If you don’t include this information and get the Delaware power of attorney notarized, it may not be enforceable. The agreement also needs to contain specific language around the authority granted. Our form builder makes it simple to include all relevant information in your Delaware power of attorney.
Legal Requirements and Considerations for Delaware POAs
Delaware power of attorney requirements cover a number of key issues, including duration, termination clauses, and revocation.
Duration
A power of attorney most often comes into effect when you sign it. In some cases, it can come into effect when specific terms outlined in the agreement become true.
A durable power of attorney remains in effect until it is changed or revoked, the principal or the agent dies, or the agent is no longer able to carry out those responsibilities. A non-durable power of attorney remains in effect until a specific date or event specified in the agreement. It will automatically terminate upon the principal’s incapacity.
If you want the agreement to take effect only when a specific event or trigger occurs, use a springing power of attorney.
Termination
Per 12 DE Code § 49A-110, a power of attorney is generally terminated if:
- the principal dies
- the principal revokes the agent’s authority
- the agreement reaches its specified end date
- the agent fulfills the purpose of the agreement
- the agent is unable to fulfill their duties
If you named your spouse as the agent, the power of attorney is automatically terminated if you get a divorce or an action is filed to dissolve your marriage following separation.
Revocation
The principal has the right to the revocation of a power of attorney at any time. To revoke a power of attorney, you need to prepare a revocation letter and have it notarized. Then notify the agent and any relevant parties. The agent may continue acting on your behalf until they receive notification of the revocation.
Filing
In Delaware, you do not need to file most types of power of attorney with the state or county to make them legal. When you create a real estate power of attorney, you should file it with the local Recorder of Deeds to ensure that it remains legal and that your agent has full authority to act on your behalf.
Signing and Notarization
Under 12 DE Code § 49A-105, a power of attorney requires both an adult witness and notarization. Notarizing your form legalizes the agreement. The agent must also sign a certificate that notes that they understand their role and responsibility to the principal. Delaware also recommends that you attach a signed notice to the power of attorney that confirms you understand what it means and what powers it conveys.
