Delaware Code Title 12 Sec. 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 neither:
a. Related to the principal by blood, marriage, or adoption; nor
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.
Terms Used In Delaware Code Title 12 Sec. 49A-105
- Adult: means an individual who has attained 18 years of age. See Delaware Code Title 12 Sec. 39A-101
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Codicil: An addition, change, or supplement to a will executed with the same formalities required for the will itself.
- Court: means the Court of Chancery. See Delaware Code Title 12 Sec. 39A-101
- Personal property: All property that is not real property.
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. See Delaware Code Title 12 Sec. 39A-101
(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.
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??Principal________________________________??Date
(c) Regardless of the method by which a person accepts appointment as an agent under a personal power of attorney (pursuant to § 49A-113 of this title), such 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.
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??Agent________________________________??Date