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How To Make a Power of Attorney in Delaware FAQ

Written by: Catherine Hodder, Esq. , Senior Legal Writer
Reviewed by: Jordan Walker, J.D. , Legal Writer
Last updated May 13, 2024

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A power of attorney helps you when you can’t manage your own legal and financial affairs. This could be for convenience or if you have an illness or incapacity. Get answers to frequently asked questions about Delaware power of attorney forms and how to create a valid power of attorney conforming to Delaware’s state laws.

Frequently Asked Questions

What Is a Power of Attorney?

A power of attorney (POA) is a legal document that allows you, as the “principal,” to authorize another person to act on your behalf, called an “agent” or “attorney in fact.” There are different types of power of attorney documents for different purposes.

financial power of attorney allows an agent to handle legal and financial matters. The scope of this authority can be broad or limited, and the document must comply with Delaware law, specifically under the Durable Personal Powers of Attorney Act, Chapter 49A. A power of attorney for healthcare allows an agent to handle your medical decisions and follows your instructions for your end-of-life care.

If you don’t have a power of attorney and are suddenly incapacitated or can’t make your own decisions, your family will have to go to court for a conservatorship. A court then appoints someone to be your conservator to make decisions for you. Having a power of attorney avoids a conservatorship because you already named someone willing and able to act for you.

Who Can Be My Agent?

Any competent adult can serve as your agent in Delaware. When choosing an agent, such as a family member, friend, or professional advisor, you want someone responsible, organized, and trustworthy. An agent has a fiduciary duty to avoid conflicts of interest and act in good faith for the benefit of the principal. Still, they have broad power over your assets and property.

Avoid naming co-agents in your power of attorney because it can create problems. If your co-agents must act jointly, if they disagree, nothing gets done. If your agents can act independently, they may contradict each other and confuse third parties. Instead, name one person as your primary agent and another person as your backup or successor agent if your primary agent is unwilling or unable to serve.

What Can My Agent Do in Delaware?

You decide what you want your agent to do for you. Common responsibilities may include paying bills, maintaining family support, and making financial decisions. You can grant your agent general authority to handle transactions involving the following subjects under Delaware statutes §49a-204 – §49a-217:

  • Real property (your real estate)
  • Tangible personal property (your possessions)
  • Stocks and bonds
  • Commodities and options
  • Banks and other financial institutions
  • Operation of entity or business
  • Insurance and annuities
  • Estates, trusts, and other beneficial interests
  • Claims and litigation
  • Personal and family maintenance
  • Benefits from governmental programs or civil or military service.
  • Retirement Plans
  • Taxes
  • Gifts

However, there are certain powers that a principal must expressly authorize under §49a-201, such as the following:

  • Create, amend, revoke, or terminate a living trust
  • Make a gift
  • Create or change rights of survivorship
  • Create or change a beneficiary designation
  • Delegate authority granted under the power of attorney
  • Exercise fiduciary powers that the principal has authority to delegate
  • Reject, renounce, disclaim, release, or consent to a reduction in or modification of a share in or payment from an estate, trust, or other beneficial interest
  • Exercise all rights and powers granted to a fiduciary to access digital accounts and assets

Some of these powers have the potential to reduce your estate, which you may want your agent to do to minimize your estate taxes or qualify you for government benefits like Medicaid. Talk to your agent about how you want them to handle your property and assets and only give them the powers that they will need.

What Is a Durable Power of Attorney in Delaware?

durable power of attorney remains in effect even if the principal becomes incapacitated. In Delaware, under §49a-104, a power of attorney is durable if it contains the words: “This power of attorney shall not be affected by the subsequent incapacity of the principal” or “This power of attorney shall become effective upon the incapacity of the principal,” or similar words.

When Is the Power of Attorney Effective?

A power of attorney in Delaware is effective immediately upon signing under §49a-109. However, you can make it effective at a future date or contingent event, such as the principal’s incapacity, called a “springing” POA.

When Does the Power of Attorney End?

In the state of Delaware, a power of attorney ends upon the principal’s death, revocation by the principal, the occurrence of a specified event, or if the agent resigns or can no longer carry out the duties, as detailed in § 49a-110. Additionally, if your spouse is your agent and you file for divorce or annulment, their agent authority automatically ends. That is why it is a good idea to name a backup agent.

Does Delaware Have a Statutory Power of Attorney?

Yes. Delaware provides a statutory durable personal power of attorney form under §49a-301. You can use it as a template, but there are other options for creating a Delaware POA. Make your own power of attorney customized for your situation or hire an estate planning attorney.

Can I Make My Own Power of Attorney in Delaware?

Yes. As long as you are an adult and mentally competent, you can make your power of attorney. When creating a power of attorney, you should know who you want as your agent and what powers you want them to have. Use forms conforming to Delaware law and notice and signing requirements. Many people use state-specific online estate planning forms. However, if you have questions about making a power of attorney, you should talk to an attorney for legal advice.

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How Do I Make My Power of Attorney Valid in Delaware?

Your power of attorney must be in writing, signed and dated by you, and properly executed according to §49a-105 with a witness and a notarization from a notary public. Your witness cannot be related to you or receive any part of your estate.

Do I Have to Notarize My Power of Attorney in Delaware?

Yes. For a valid power of attorney, a notary must acknowledge your signature on the document.

What Should I Do After Signing My Power of Attorney?

After signing your power of attorney, provide copies to your agent and any other parties that require it, such as your bank. A third party may ask your agent to sign an agent certification form in which your agent states under oath that your power of attorney is effective and that they can act on your behalf. Talk with your agent to make sure they understand their responsibilities. Keep your original in a secure place.

Does a Power of Attorney Agent Get Paid in Delaware?

An agent may receive reimbursement for reasonable expenses incurred on behalf of the principal and may be compensated for their services if the principal provides for reasonable compensation under § 49A-112.

Is My Delaware Power of Attorney Valid in Another State?

Yes. Generally, a power of attorney created in Delaware and executed according to Delaware state law will be honored in other states.

Can I Revoke My Delaware Power of Attorney?

Yes. As long as you are mentally competent, you can revoke your Delaware power of attorney at any time. Your revocation should be in writing and given to your agent and any third parties who have relied on the original POA document.

What Estate Planning Documents Should I Have in Delaware?

You should consider a health care directive and a last will and testament in addition to your financial power of attorney for a complete estate plan.

A health care directive, or an advance directive, combines a medical power of attorney and a living will. You name an agent to get your healthcare records, talk to medical providers, and make healthcare decisions when you can’t. You can also leave your instructions and wishes for medical treatments or life-sustaining measures you want when you have an end-stage illness or terminal condition.

last will and testament in Delaware helps your loved ones after your death. You decide who handles your estate, inherits your property and assets, and cares for your minor children and pets. Without a will, a court follows state intestacy laws and makes decisions about your family. Having a will gives you peace of mind that your loved ones and your property are protected.

Fortunately, with online estate planning templates, it is easy to create a valid power of attorney and other Delaware estate planning documents.

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