Delaware Financial Power of Attorney
Delaware's Durable Personal Powers of Attorney Act sets execution rules that a generic form can miss. The principal must sign in front of a notary and one adult witness who is neither a relative nor a beneficiary, and the agent has no authority to act until the agent signs a certification attached to the document.
What Delaware law does to this document
Signing: a notary and one qualified witness
A personal power of attorney must be in writing, dated, and signed by the principal in the presence of a notarial officer. It must also be signed in the presence of one adult witness. The witness may not be related to the principal by blood, marriage or adoption, and may not be entitled to any part of the principal's estate under an existing will or trust.
12 Del. C. § 49A-105(a)The agent's certification is a condition of authority
However the agent accepts the appointment, the agent has no authority to act until the agent has executed and attached a certification in substantially the statutory form. In it the agent acknowledges the duties to act in good faith, within the scope of the authority granted, and in line with the principal's reasonable expectations. A document signed by the principal alone is not yet usable.
12 Del. C. § 49A-105(c)The notice to the principal
The statute supplies a notice to be signed by the principal and placed at the beginning of the document. It is optional, but it has a consequence. Without a signed notice, an agent whose authority is challenged carries the burden of showing that the power of attorney is valid.
12 Del. C. § 49A-105(b)Durability and springing powers
A power of attorney is durable if it says it is not affected by the principal's later incapacity, or that it becomes effective on incapacity, or uses similar words. It is effective when executed unless it names a future date or event. If it takes effect on incapacity and names no one to make that determination, a physician or a court must determine incapacity in a writing or other record.
12 Del. C. §§ 49A-104, 49A-109Powers that must be granted expressly
An agent may make gifts or create or change a trust only if the document expressly grants that authority. The same is true of changing survivorship rights or a beneficiary designation. Unless the document says otherwise, a general grant of gifting authority is limited per recipient to the federal annual gift tax exclusion, or twice that amount if the principal's spouse agrees to split the gift.
12 Del. C. §§ 49A-201(b), 49A-217Banks and others must accept it
A person presented with an acknowledged personal power of attorney must accept it and may not require a different form. Refusal is not permitted solely because the document varies from the statutory form in § 49A-301. Listed exceptions include actual knowledge that the power has been revoked. A person who refuses in violation of the statute is subject to a court order compelling acceptance and liability for damages, including reasonable attorneys' fees and costs.
12 Del. C. § 49A-120Where people go wrong in Delaware
- Signing before a notary alone, which is what the generator's notary-only option produces, or using a spouse, child or beneficiary as the witness, when Delaware requires one adult witness who is unrelated and takes nothing under the principal's will or trust.
- Relying on the generator's draft for the Delaware forms: its agent acceptance and optional certification exhibit are not the agent's certification in 12 Del. C. § 49A-105(c), and it has no signed principal's notice in the § 49A-105(b) form, so both have to be added before the agent acts.
- Expecting the document to cover medical decisions, which the Act excludes from a personal power of attorney.
How the generator works
Names someone you trust to handle your money and property matters, either only if you become incapacitated (durable) or starting right away, plus a matching revocation to cancel it. Answer a short interview and the draft assembles as you go, with Delaware already set as the governing state. Download it as PDF or Word. No fee. No account.