Durable Power of Attorney in Delaware provides a way in which a person can choose another person to legally handle his or her financial affairs. A durable power of attorney continues in effect even if the principal (person assigning powers) is declared incompetent and unable to handle his or her own financial affairs. This is an important legal document that should only be issued to appoint powers the principal can trust implicitly. It is generally recommended the principal precisely define the powers he or she wishes to grant.
Execution (§ 49A-105) – Must be signed in the presence of a notary public and one (1) witness that is not related by blood, marriage, or adoption or entitled to any portion of the principal’s estate through a last will and testament, codicil, or trust.
Laws – Title 12, Chapter 49 (Durable Powers of Attorney)
Statutory Form – § 49A-105
Medical Power of Attorney (Advance Health Care Directive) – Gives the opportunity to select someone to make healthcare decisions in the event that you become incapacitated.
How to Write
1 – Download And Review the Delaware Durable Power of Attorney
The Durable Authority form may be downloaded by selecting your preferred file type (PDF, ODT, or Word) with the buttons provided on the right. You may click one to open and work directly on-screen, download it then work on it later, or print it and fill it in manually. The Principal should review this form before preparing it or having another agent prepare it. Once it is signed properly, the Agent’s Principal Authority will be recognized in the areas defined in this form.
2 – Notice To Principal
The person granting power to another party, over some or all of his or her affairs, must read the first page of this form. At the bottom of the page, the Principal must verify his or her understanding by providing a Signature and the Date of Signature.
3 – Principal Appointment of Agent
The first portion of this form will require an identification of the parties involved. The first statement below the heading “Designation of Agent” will be the first item requiring attention. Enter the Full Name of the Principal on the blank line above the words “(Name of Principal)”
The “Agent(s)” section will contain an area where the Principal may provide the required information to name an Agent or Attorney-in-Fact. Report the Full Name of the Agent on the first blank space below the word “Agent(s).” Below this, the Agent’s Address (Residential) and the Agent’s Telephone Number (Daytime) should be reported accordingly on the blank spaces labeled “Agent’s Address” and “Agent’s Telephone Number” (respectively).
4 – Principal Appointment of Successor Agent(s)
The Principal may choose to take a precautionary measure in naming a Successor Agent or Successor Attorney-in-Fact. This is usually a recommended precaution as it will provide a predetermined Attorney-in-Fact to step into the role of Principal’s Agent rather seamlessly should the original Agent be unable or unwilling to fulfill his or her duties. The area below the words “Designation of Additional or Successor Agent(s)” will provide enough room for the Principal to designate up to two individuals as Successor Agent(s). Utilize the first set of lines, labeled “Name of Agent,” “Agent’s Address,” and “Agent’s Telephone Number,” in this section, to report the Identity, Residential Address, and Daytime Telephone Number of the Successor Agent(s) and Attorney(s)-in-Fact. Each will have his or her own area for this information to be presented.
5 – Principal Intent On Agent Interaction
If more than one Agent is listed on this document, it will be necessary to define how, precisely, these entities should interact or even if they should. The first statement on the next page will deal with this definition. Locate the statement “If more than one Agent has been named above, I intend for these Agents to.” The Principal will need to initial one of the choices below this statement. If he or she wishes these Agents to act Successively (one after the other) with only one having Principal Power at a time, then he or she must initial the first choice. If the Principal wishes the Agent’s to act independently of one another, the Principal must initial the second choice. If the Principal intends for the Agent(s) to act cooperatively, he or she will need to initial the third choice.
6 – Principal Determination Of Document Effect
In order for an Agent to assume Principal Power, the Principal will need to specify when this document allows for the Agent to begin wielding such power on his or her behalf. If the Agent’s Principal Power is to go into effect immediately upon the execution of this document, then he or she must Sign the blank space preceding the statement beginning with the words “This power of attorney is effective immediately…”
If the Principal intends for the Agent to assume Principal Power only when he or she is rendered incapable of wielding the Powers in this document, then he or she must provide a Signature on the blank space preceding the words “This power of attorney is effective only if and while”
6 – Assign The General Nature of the Principal Authority Granted To The Agent
The Principal will need to define the general Nature of the Authority being granted using the next section of this document “Grant of General Authority.” Here, a list of Principal Subject Matters will be presented. Each will have a blank space preceding it. The Principal will need to physically grant this power to the Agent named in this document by initialing the blank space preceding that subject matter.
Principal Power over Real Property will be granted to the Attorney-in-Fact, once the first item in this list is initialed by the Principal.
Authority over the Principal’s Tangible Personal Property will be appointed to the Agent, once the second item is initialed by the Principal
Principal Authority over his or her Stocks and Bonds will be granted to the Agent when the Principal initials the third item.
The Principal may grant the Agent Principal Power over his or her Commodities and Options by initialing the fourth item.
The Principal will appoint the Agent Principal Authority in dealing with his or her Banks and Other Financial Institutions by initialing the fifth item
The Principal will grant the Agent Authority in the Operation of (his or her) Entity or Business by selecting the sixth item.
The Agent may wield the Principal’s Authority regarding Insurance and Annuities if the Principal initials the seventh item.
The Principal will appoint the Agent with Power over his or her Estates, Trusts and Other Beneficial Interests by initialing the eighth item.
The Principal’s Claims and Litigation may be acted on by the Agent only if the ninth item is initialed
The Personal and Family Maintenance of the Principal will be affected by the Agent if the Principal initials the tenth item.
The Agent will gain Principal Authority regarding the Principal’s Benefits from Governmental Programs or Civil or Military Service one the Principal initials the eleventh matter.
The twelfth subject, “Retirement Plans,” will require the Principal’s initials should the Agent be expected to act with Principal Authority in this matter.
The Principal can grant Principal Authority regarding his or her Taxes to the Agent by initialing the thirteenth category
The Agent will have Principal Authority regarding Gifts once the Principal initials the fourteenth subject matter.
7 – Assigning Specific Actions To The Agent
In addition to granting Authority in somewhat general subject matters, the Principal must also specify what types of actions may be taken by the Agent, or Attorney-in-Fact, using the “Grant of Specific Authority” section. The Principal must initial the blank space preceding the actions the Principal wishes (or anticipates) the Agent or Attorney-in-Fact to take on his or her behalf.
The Principal must initial the first action to all the Agent to Create, Amend, revoke, or terminate an inter vivo trust
The second action must be initialed by the Principal so the Agent may Make any Gift that exceeds the limits described in the Durable Personal Power of Attorney Act
The Agent will be granted Principal Authority to Create or Change Rights of Survivorship when the Principal initials the third action.
In order to grant the Agent, the Power to Create or change a beneficiary designation, the Principal must initial the Fourth Action.
The Principal can give the Agent Principal Power to Delegate Authority should the Successor Agents resign or otherwise be unable to live up to Principal Responsibility by initialing the fifth action.
The Agent may execute Principal Fiduciary Powers where allowed and necessary once the Principal initials the sixth action.
If the Agent may take action regarding Estate Payments on behalf of the Principal, the seventh action will need to be initialed by the Principal
8 – Proclaiming This Document’s Effect On Previous Principal Authority Documents
In the “Revocation of Prior Power of Attorney” section, the Principal will describe how he or she wishes this document to interact with any previously executed Authority Documents. If all Previously issued Authorities should be revoked by the execution of this document, the Principal must initial the first statement.
The Principal may allow previously executed Authority Documents to remain in effect by initialing the second statement
There may be specific Authorities that should remain in effect and others that should not. In fact, there may even be conditions the Principal wishes to impose on any revocations caused by this document’s execution. Whatever the case, if the Principal requires you to specify his or her wishes further, the third option will need to be initialed and explained in the appropriate areas.
9 – Signing This Document
The Principal must provide authenticity to this document by providing a Dated Signature. To begin, the Principal must enter the Calendar Day, Month, and Year of the Signature utilizing the three blank spaces provided in the statement “In Witness whereof…”
The Principal must Sign and Print his or her Name on the blank lines “Principal’s Signature” and “Print Principal’s Name” (respectively).
Below the Principal Signature will be a Witness Verification statement (starting with the words “Signed, Sealed, and Declared…”). The Witness must enter the Principal’s Full Name on the first blank space in this statement. Immediately below the Witness Verification Statement, the Witness must Sign his or her Name on the blank space “(Seal) Witness Signature”) then, record his or her Address on the blank line following the word “of.” Once these tasks are completed the Witness must print his or her Name on the blank line labeled “Print Name.”
This document will need to notarized by the Notary Public present at the Principal Signing. There will be a reserved area for this below the Witness Acknowledgment.
Finally, The Agent who has been assigned Authority by this document’s execution must read the final couple of pages, then Sign his or her Name and provide the Date of Signature on the blank lines “Agent Signature” and “Date”
