A Power of Attorney in Delaware grants an agent legal control over property and assets and the legal right or authority to act on behalf of the principal.
To bestow the power, a principal (or the person who has made a power of attorney) executes the document and names an agent (the person to whom power is given). This person holds a power of attorney until the designated time has passed, the objectives are met, or the principal terminates the POA. The agent can begin signing and acting on behalf of the principal once the form is signed and there is no need to record the document in the government office.
State laws in Delaware govern the preparation and execution of the power of attorney forms. This article will highlight the different types of POAs, governing laws, and how to acquire a POA in Delaware.
Different Types of POA
Multiple types of Delaware power of attorney forms are available for use in the state. Each type is aimed at a specific purpose or domain. This way, the principal who want to appoint an agent or companies to carry out different functions on their behalf can do so using a power of attorney that reflects the situation.
Examples of POA types in Delaware include:
Advance Health Care Directive
Advance health care directive is a Delaware power of attorney form that gives legal authority to an agent to make health care decisions on behalf of the principal. Delaware’s type of power of attorney is subject to the following law - Title 16, Chapter 25 (Health Care Decisions). An advance health care directive thus ensures the principal’s medical wishes and interests are protected even if they cannot communicate them to physicians, for example, due to incapacitation. The document has to be signed by at least two witnesses according to (§ 2503(b)(1)). There are four versions of this type of POA: Beebe Healthcare, Catholic Diocese of Wilmington, Dept. of Health and Social Services (DHSS), and Spanish (Española) Version.
Download: Microsoft Word (.docx)
Durable (Statutory) Power of Attorney
A durable (statutory) POA is a Delaware power of attorney document afforded durable status by the state law Title 12, Chapter 49A (Durable Personal Powers of Attorney). This type of POA is termed “durable” because it remains valid even if the principal becomes incompetent or incapacitated. Durable power of attorney may only be revoked or amended in writing or after the demise of the principal. Delaware provides two versions of a durable power of attorney – a standard version and a standard version 2. The document must be witnessed by at least one witness and should be notarized. Delaware’s statutory form for a durable power of attorney can be obtained from § 49A-301 of the Delaware Code.
Download: Microsoft Word (.docx)
General (Financial) Power of Attorney
A Delaware general (financial) power of attorney document aimed at granting financial control to an agent. The governing laws of execution are Chapter 49A. Durable Personal Powers of Attorney Act. The document confers authority on the agent to do all of the following, i.e., to pay money, sign checks or open an account or bank. The authority also extends to make investments on behalf of the principal, according to (12 Del.C. § 49A-201). This type of POA must be witnessed (one witness) and notarized.
Download: Microsoft Word (.docx)
Limited Power of Attorney
A Delaware limited power of attorney document gives the agent limited authority to perform specific functions for the principal according to (12 Del.C. § 49A-201). It can be used for buying and selling property or any other business transaction. Its preparation and execution is subjected to Chapter 49A. Durable Personal Powers of Attorney Act. The signing requirements based on (12 Del. C. § 49A-105) state that the POA has to be witnessed (one witness) and notarized.
Download: Microsoft Word (.docx)
Minor (Child) Power of Attorney
A minor (child) power of attorney is used to appoint a legal guardian for minor children in the state. When executing this type of POA, every parent or adult with parental rights must appoint a responsible adult, such as a friend, who will assume the principal’s responsibilities if they cannot do so temporarily or permanently.
Download: Microsoft Word (.docx)
Real Estate Power of Attorney
Real estate power of attorney (POA) gives the agent legal authority to sell, transfer or buy real estate in Delaware according to Chapter 49A. Durable Personal Powers of Attorney Act. It also extends to executing tax assessment appeals and renewing mortgage documents on behalf of the principal. This type of POA must be notarized, and one witness is required for signing purposes in compliance with (12 Del. C. § 49A-105).
Download: Microsoft Word (.docx)
Revocation of Power of Attorney
Cases where Delaware’s need for revocation of power of attorney can be pretty numerous is when the POA is no longer required, or the principal decides to change the agent. In this regard, the law in Delaware stipulates that a power of attorney can be terminated, cancelled, or revoked using revocation of power of attorney. Firstly, it may be revoked in writing by notifying the agent of POA formally and in writing through the revocation POA. Secondly, the revocation POA should be sent to all third parties who have dealt with the agent in good faith. Finally, the state law also spells out that all powers, rights, and duties cease upon revocation of power of attorney in Delaware.
Download: Microsoft Word (.docx)
Tax Power of Attorney (Form 2848)
This type of POA is used for appointing an agent to file federal income tax forms or deal with state tax authorities on behalf of the principal. The third-party (agent) who will be signing the Tax Form 2848 form has to own power of attorney in Delaware. The agent can be an accountant or a company.
Download: Microsoft Word (.docx)
Vehicle Power of Attorney (MV-386)
A vehicle power of attorney gives the agent authority to sell, transfer or buy a motor vehicle in Delaware on behalf of the principal. In addition, it can transfer the principal’s functions regarding the DMV to the agent. This type of power of attorney in Delaware has to be notarized.
Download: Microsoft Word (.docx)
Springing Power of Attorney
A Delaware springing power of attorney document is activated when a specified trigger occurs later on. Such events include becoming incapacitated so that a designated person handles all financial matters on their behalf. A springing POA comes into immediate effect when the event happens. This means that it is without being dated or notarized like other POAs in Delaware.
Download: Microsoft Word (.docx)
Governing Laws
Delaware durable power of attorney is typical due to its ability to extend even after the principal becomes incapacitated. Its execution is governed by Title 12, Chapter 49A (Durable Personal Powers of Attorney). According to (§ 49A-102(2)), the term durable implies that the principal’s incapacity does not terminate the POA. A durable POA is also defined under (§ 49A-102(2)). The state of Delaware dictates that the durable power of attorney must be signed following (§ 49A-105) to be valid. Delaware does have a statutory form located at § 49A-301 of the Delaware Code.
Delaware POA Requirements
The state of Delaware dictates that a power of attorney meets specific requirements stipulated under the Delaware Durable Personal Powers of Attorney Act to be legally enforceable within the state. Firstly, the appointed agent must be an adult, over 18 years. Both parties (principal and agent) must sign the document. At least two witnesses should also witness the POA.
Additionally, the principal is prohibited from combining their funds with the agent. Also, the court has a right to revoke a Delaware power of attorney if they establish that it has not been executed appropriately. Regarding an advance health care directive, the state of Delaware requires that a registered physician declare that the principal is incapacitated and unable to make medical decisions before the agent assumes responsibility on behalf of the principal.
Additionally, the agent is legally authorized to grant, refuse or withdraw consent to medical treatments even if it is believed to be aimed at extending the principal’s life.
Customizable Forms
How to Get Power of Attorney in Delaware?
Delaware State has made the acquiring of a power of attorney easier by providing statutory forms on the Delaware courts website. The statutory can be used as a guide in creating customized Delaware power of attorney. The process of obtaining a POA in Delaware can be summarized in the following steps: first, understand how a POA works, appoint an attorney-in-fact/agent, assign responsibilities, create a power of attorney in Delaware, find witnesses, sign the document and notarize it and lastly keep the original copy and issue a copy to the agent.
Key Takeaways
- A power of attorney is a contract of authority that gives an agent the legal power to act on behalf of the principal. This is usually done for financial matters but can be used for any activity like real estate or health care purposes.
- All states have provisions for POA, but not all POAs are the same, and not all POAs are enforceable. A POA has to comply with Delaware state laws and requirements to be enforceable within the state.
- Delaware has its own set rules for making a power of attorney valid. Some states may require additional documents like medical power of attorney, wills, and trusts. Therefore, it is advisable to check the state laws in which you reside.
- Delaware has many forms of power of attorney with variations such as durable, springing, tax, etc.
