Del. Code tit. 12 § 49A-105

Current through 2024 Legislative Session Act Chapter 510

Section 49A-105 - Execution of personal power of attorney

(a) A personal power of attorney must be:

(1) In writing;

(2) Signed by the principal or by another person subscribing the principal's name in the principal's presence and at the principal's express direction;

(3) Dated;

(4) Signed in the presence of a notarial officer; and

(5) Signed in the presence of 1 adult witness who is not:

a. Related to the principal by blood, marriage, or adoption; or

b. Entitled to any portion of the estate of the principal under the principal's then existing will or codicil or amendment thereto or trust instrument.

(b) A personal power of attorney may be accompanied by a notice in the following form, signed by the principal and placed at the beginning of the personal power of attorney. In the absence of a signed notice, upon a challenge to the authority of an agent to act under the personal power of attorney, the agent shall have the burden of demonstrating that the personal power of attorney is valid.

"NOTICE

As the person signing this durable power of attorney you are the Principal.

The purpose of this power of attorney is to give the person you designate

(your "Agent") broad powers to handle your property, which may include powers

to sell, dispose of, or encumber any real or personal property without advance

notice to you or approval by you.

This power of attorney does not authorize your Agent to make health-care

decisions for you.

Unless you specify otherwise, your Agent's authority will continue even if you

become incapacitated, or until you die or revoke the power of attorney, or

until your Agent resigns or is unable to act for you. You should select

someone you trust to serve as your Agent.

This power of attorney does not impose a duty on your Agent to exercise

granted powers, but when powers are exercised, your Agent must use due care to

act for your benefit and in accordance with this power of attorney.

Your Agent must keep your funds and other property separate from your Agent's

funds and other property.

A court can take away the powers of your Agent if it finds your Agent is not

acting properly.

The powers and duties of an Agent under a durable power of attorney are

explained more fully in Delaware Code, Title 12, Chapter 49A, § 49A-114 and §§

49A-201 through 49A-217.

If there is anything about this form that you do not understand, you should

ask a lawyer of your own choosing to explain it to you.

I have read or had explained to me this notice and I understand its contents.

__________________ __________________

Principal Date"

(c) The agent shall have no authority to act as agent under the personal power of attorney unless the agent has first executed and affixed to the personal power of attorney a certification in substantially the following form:

"AGENT'S CERTIFICATION

I, (Name of Agent), have read the attached durable personal power of attorney

and I am the person identified as the Agent or identified as the Agent for the

Principal. To the best of my knowledge this power has not been revoked. I

hereby acknowledge that, when I act as Agent, I shall:

Act in accordance with the principal's reasonable expectations to the extent

actually known to me and, otherwise, in the Principal's best interest;

Act in good faith;

Act only within the scope of authority granted in the personal power of

attorney; and

To the extent reasonably practicable under the circumstances, keep in regular

contact with the principal and communicate with the principal.

In addition, in the absence of a specific provision to the contrary in the

durable personal power of attorney, when I act as Agent, I shall:

Keep the assets of the Principal separate from my assets;

Exercise reasonable caution and prudence; and

Keep a full and accurate record of all actions, receipts and disbursements on

behalf of the Principal.

__________________ __________________

Agent Date"

12 Del. C. § 49A-105

77 Del. Laws, c. 467, § 4; 78 Del. Laws, c. 369, §§ 1, 2.;