The Delaware durable power of attorney is a legal document used to authorize another person to represent someone's interests before third parties.
The durable power of attorney is different from other types of powers of attorney because it remains effective even if the principal becomes incapacitated or is otherwise unable to represent their interests.
You can use the durable power of attorney in any situation where you are unable to represent yourself, either due to a bad mental or physical disability, such as dementia or Alzheimer’s disease or simply because you will be away from a certain place for a longer period of time.
Durable Power of Attorney Laws & Requirements in Delaware
Laws & Requirements
Signing: The principal must sign the document before the notary public and at least one witness who is not related to the principal by blood, marriage, or adoption.
Statutory form: Delaware Code, § 49A-301 provides the statutory form for the durable power of attorney.
“Durable” definition: According to the Delaware Code, § 49A-102(2), “Durable,” with respect to a power of attorney, means not terminated by the principal’s incapacity.
How to Fill out a Durable Power of Attorney in Delaware
#1. Designate an Agent
Firstly, provide details about the principal and the agent. Insert their full names and mailing addresses. If necessary, insert the ID and professional license number of the agent.
When choosing the agent, you should look for a person who has the legal capacity to represent you, the willingness to represent you and is trustworthy.
You can also name the successor agent, who will act in case the primary agent loses capacity or is otherwise unable to act.
#2. Grant Authority
Here, you will provide the scope of authority the agent can have by naming the activities they are authorized to take.
There are three ways you can grant authority to the agent:
Scope of Authority
General. By granting general authority, you are enabling the agent to take any action that is in your best interest. This also means that the agent can interact with any third party on your behalf. However, you can provide certain limitations by naming the actions they are not allowed to take (for example, financial or medical decisions).
Partial. Here, you can provide a list of specific actions your agent can take when representing you. You can do so by signing your initials in front of the actions they are allowed to take.
Specific. This option enables you to describe the scope of authority for the agent in your own words. This option gives you the most flexibility since you can formulate the scope of authority yourself. The principal usually uses this method when they want to authorize the agent to complete a specific action that is not provided in the power of attorney form.
#3. Ensure the Form is Durable
If you want your power of attorney to be effective even after you lose your legal capacity, you must create a durable power of attorney.
In Delaware, a power of attorney is not durable by default, so you must specifically state that it is a durable power of attorney.
#4. Sign the Form
According to the durable power of attorney signing requirements in Delaware, the principal must sign the document before the notary public and at least one witness.
#5. Notarize the Form
The notary public will notarize the durable power of attorney and confirm the principal’s signature and the authenticity of the document.
#6. Store Your Durable Power of Attorney Form
You should keep the original power of attorney in your possession and in a safe place. You can also give one copy to the agent, as well as any third parties they are interacting with.
How to Revoke a Durable Power of Attorney in Delaware
The best way to revoke a durable power of attorney is to issue a power of attorney revocation letter. This letter will include the name of the agent and the date of issuing the power of attorney.
For the revocation to take effect, you must send a copy of it to the agent and any third party they are interacting with on your behalf.
You can also revoke the Delaware durable power of attorney by making a verbal statement of revocation before two witnesses.