A Delaware durable statutory power of attorney form is a document that grants someone (the “agent”) the legal authority to act and make decisions for another person (the “principal”) in the state.
Laws
Power of attorney forms can be made durable by including either the following or similar language:
“This power of attorney shall not be affected by the principal’s subsequent incapacity.” / “This power of attorney shall become effective upon the incapacity of the principal.”
- Statute: Title 12, Chapter 49 (Durable Powers of Attorney) and Chapter 49A (Durable Personal Powers of Attorney Act).
- Presumed Durable: No. Durability language is required.
- Signing Requirements: Signature, date, and one witness are required (§ 49A-105).
- Notarization: Must be dated and signed by a notarial officer.
- Statutory Form: Yes (§ 49A-301).
Definitions
Durable – A “durable” power of attorney stays valid even if the principal becomes incapacitated as long as it meets the legal requirements (§ 49A-102(2)).
Power of Attorney – “Power of attorney” is defined as a legal authorization for someone (the agent) to act on another person’s (the principal’s) behalf, including the authority to transfer ownership of the principal’s property (§ 49A-102(10)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
According to § 49A-217, there are specific limitations imposed on an agent’s authority concerning gifts.
Types of Gifts:
- Gifts “for the benefit of” a person: Includes gifts to trusts, accounts, or interests held under specific property transfer acts (Delaware Uniform Transfers to Minors Act or similar statutes) and contributions to tuition savings accounts or prepaid tuition plans.
- Outright gifts to individuals: The agent can only give an individual a maximum of the annual federal gift tax exclusion amount (as defined in the Internal Revenue Code).
- Consent to splitting gifts made by the principal’s spouse: If the principal’s spouse consents to a “split gift,” the agent can give an individual up to twice the annual exclusion amount.
Considerations:
- The agent must determine if the gift aligns with the principal’s known objectives.
- If the objectives are unknown, the agent must consider the principal’s best interests based on various factors, including:
- Value and type of the principal’s property.
- Principal’s foreseeable financial needs.
- Minimizing taxes.
- Maintaining eligibility for benefits.
- Principal’s history of gift-giving.
Agent’s Authority Limitations
The agent is generally obligated to act in the principal’s best interests, even if the DPOA grants broad powers. This might involve considering financial security and overall well-being. If the principal’s wishes are known regarding specific matters (e.g., asset distribution), the agent should prioritize those preferences. However, this specific power of attorney does not grant your agent the authority to make health care decisions on your behalf.
The agent typically cannot engage in transactions that benefit themselves or have a conflict of interest with the principal. They also cannot use the DPOA to authorize actions that violate the law. In cases of suspected abuse, neglect, or exceeding authority, a court may intervene and limit the agent’s power.
Revocation and Termination
According to § 49A-110, a DPOA terminates when:
- The principal dies.
- The principal revokes it (possible at any time).
- A particular event is completed (e.g., selling a specific asset).
- A specific purpose (e.g., managing an investment during a trip) has been achieved.
- The principal revokes the agent’s authority or the agent dies, becomes incapacitated, or resigns, and there’s no named successor agent.
- The court revokes it (under specific circumstances outlined in § 49A-116.
The principal can revoke the agent’s authority specifically, even if the DPOA itself remains in effect. Unless the document states otherwise, the agent’s authority terminates if they divorce the principal (when the agent is the principal’s spouse). A new document doesn’t automatically revoke a previous one unless it explicitly states it does.
Safekeeping and Registration
There is currently no statewide registry for DPOAs in Delaware. The principal should keep the original signed document in a secure location. A copy can be provided to the agent and other trusted individuals.
Some financial institutions may have their own internal procedures for keeping DPOAs on file. It’s best to check with each specific bank, brokerage, or other institution you deal with to see if they have any requirements for filing the form.
Additional Resources
- State Bar Association: Provides resources on estate planning.
- Delaware Division of Corporations: While focused on business filings, it also offers related resources.
Related Forms
Revocation of Power of Attorney
Signing Requirements: Notary public and one witness.
Medical Power of Attorney
Signing Requirements: Two witnesses.
Minor (Child) Power of Attorney
Signing Requirements: Notary public and one witness.
