Delaware General Durable Power of Attorney for Property & Finances (Upon Disability)

Delaware General Durable Power of Attorney
for Property & Finances (Upon Disability)

PACKET GUIDE — NOT PART OF THE STATUTORY FORM — DO NOT RECORD

Delaware Durable Personal Power of Attorney

Upon Disability (Springing)

(Delaware Code, Title 12, Chapter 49A — Durable Personal Powers of Attorney Act)

This packet builds on the Delaware statutory form durable personal power of attorney (12 Del. C. § 49A-301) under the Durable Personal Powers of Attorney Act (12 Del. C. §§ 49A-101 through 49A-120). The statutory form follows this guide. Read this guide, then remove it before signing and before recording: it is not part of the power of attorney.

A power of attorney that varies from the statutory form is not invalid solely because of the variance (12 Del. C. § 49A-301). This packet uses the statutory form with the labeled additions described below. One correction to note: the first EFFECTIVE DATE choice line uses the durability wording of 12 Del. C. § 49A-104 ("shall not be affected by my subsequent incapacity"); the Code's printed form says "effected," which is a typographical error in the statute.

Which effective-date line to sign

You purchased the UPON DISABILITY (springing) variant. In the EFFECTIVE DATE section of the form, sign ONLY the second choice line ("effective only if and while I am incapacitated"). Do not sign the first line. The same instruction appears on the form itself, directly above the choice lines.

A springing power is effective ONLY IF AND WHILE you are incapacitated — a continuing condition, not a one-time switch. If capacity returns, the agent's authority pauses. By default, incapacity is determined in writing by a physician or by the Court of Chancery (12 Del. C. § 49A-109(c)). The optional block after EFFECTIVE DATE lets you name your own determiner instead (§ 49A-109(b)); if you use it, name someone other than your agent, and know that the person you name may access your health-care information for this purpose (§ 49A-109(d)).

How to sign (the execution ceremony)

A Delaware personal power of attorney must be (12 Del. C. § 49A-105(a)): (1) in writing; (2) signed by you, or by another person signing your name in your presence and at your express direction; (3) dated; (4) signed in the presence of a notarial officer; and (5) signed in the presence of ONE adult witness who is NOT related to you by blood, marriage, or adoption and who is NOT entitled to any portion of your estate under your current will, codicil, or trust instrument.

You, the witness, and the notarial officer should all be physically present together when you sign. The notarial officer and the witness are two different people: the notary should not also serve as your witness, and your agent should not serve as your witness. The notary's official stamp already shows the commission expiration date (29 Del. C. § 4330), so no separate expiration line is needed.

If you sign outside Delaware, the printed venue ("STATE OF DELAWARE") would be false: strike "DELAWARE" on the acknowledgment and insert the state and county where you actually sign. Execute in Delaware if you can.

The NOTICE — sign it first

The NOTICE is the first page of the power of attorney itself. Without a signed NOTICE, your agent would have the burden of proving the power of attorney is valid if the agent's authority is ever challenged (12 Del. C. § 49A-105(b)). Sign and date it.

Choosing powers — initial to include, cross out to exclude

INITIAL each category of general authority and each specific power you WANT. CROSS OUT each one you do not want. A line you do not initial is NOT included. Cross out every line you leave uninitialed so no one can add initials later. The "specific authority" powers (trusts, gifts, survivorship, beneficiary designations, delegation, fiduciary powers, disclaimers, and the two labeled optional additions) can significantly reduce your property or change who receives it at your death — read each one before initialing.

Two labeled optional additions are not part of the enacted statutory form: (1) digital assets — the express grant 12 Del. C. § 49A-201(b)(8) requires for your agent to use the Fiduciary Access to Digital Assets and Digital Accounts Act (12 Del. C. ch. 50); and (2) gifts SUBJECT TO the limits of 12 Del. C. § 49A-217 — the form's own gift line is only the "in excess of" override, so this addition lets you grant a capped gift power instead. If you initial neither gift line, your agent has no gift power.

Optional additional provisions

The labeled OPTIONAL ADDITIONAL PROVISIONS section collects four elections. Leaving one blank keeps the statutory default: (i) executing this power of attorney does NOT revoke your earlier personal powers of attorney (12 Del. C. § 49A-110(e)); (ii) your agent is reimbursed for expenses but NOT paid compensation (§ 49A-112); (iii) if a guardian of your person or property is ever appointed, the court already prefers your then-serving agent, absent cause to the contrary (§ 49A-108(a)) — the provision makes that request express, and the extra blank lets you request a different person; and (iv) if your agent is your spouse, the agent's authority ends when an action for dissolution or annulment of the marriage is FILED (§ 49A-110(b)(3)) — the election keeps the authority in place despite a filing.

Your agent's certification — required before the agent acts

Your agent has NO AUTHORITY to act until the agent has signed the Agent's Certification and affixed it to this power of attorney (12 Del. C. § 49A-105(c)). The certification is the final page of the instrument, and an extra blank copy follows it for a successor or additional acting agent. The agent may sign later — any time before first acting — and does not sign at your execution ceremony. Each person who acts as agent (including successors) must sign a certification.

If the agent will deal with real estate: recording

A letter of attorney concerning lands, once acknowledged, is recorded in the recorder of deeds office for the county where the land lies — New Castle, Kent, or Sussex (25 Del. C. § 151). The recorded instrument, or an office copy of it, is sufficient evidence of the agent's authority; an unrecorded power of attorney is not evidence under that chapter (25 Del. C. § 156). It may be recorded at any time (25 Del. C. § 154). If the agent will sign a deed, record this power of attorney in the county where the land lies before or with the deed, initial the Real Property category (§ 49A-204), and check that county recorder's current formatting and fee rules. If the agent has already signed the Agent's Certification, record it with the instrument; if not, it can be affixed later to the original or to a copy.

Banks and others must accept this power of attorney

A person must accept an acknowledged Delaware personal power of attorney (12 Del. C. §§ 49A-119 and 49A-120). There is no seven-day waiting period. No one may require an additional or different form of power of attorney, or refuse this one solely because it varies from the statutory form. A person who refuses improperly can be ordered by a court to accept it and can be liable for damages, including reasonable attorneys' fees and costs. The only extra a requester may ask for is an English translation. Limited exceptions exist — for example, a person who knows the power has terminated, who believes it is invalid, or who makes a good-faith abuse report need not accept it (§ 49A-120(b)).

Digital assets

If you initial the labeled digital-assets addition, your agent holds the express grant Chapter 50 requires. When your agent demands access from a custodian, the agent will also need a sworn affidavit that the copy presented is a true, exact, complete, and unaltered copy and that the power of attorney remains in effect (12 Del. C. § 5005(e)) — a convenience affidavit for that purpose is the last sheet of this packet. On a springing power, the custodian can also require the physician's or court's written determination of incapacity.

More than one agent

The three "I intend for those Agents to" lines are SIGNATURE lines — sign the one that matches your intent. If you name more than one agent and sign none of them, your agents act concurrently (independently of each other) by default (12 Del. C. § 49A-111).

Health-care decisions are separate

This power of attorney does not authorize anyone to make health-care decisions for you. Delaware health-care decisions use an advance health-care directive under 16 Del. C. ch. 25.

Copies, revocation, and resignation

A photocopy or electronic copy of the signed original has the same effect as the original (12 Del. C. § 49A-106(d)). You may revoke this power of attorney at any time while you have capacity: do it in writing, deliver it to your agent and to every institution that has the power of attorney on file, and record the revocation if the power of attorney was recorded. Signing a new power of attorney does NOT revoke earlier ones unless you initial the revocation election in the optional provisions (§ 49A-110(e)). An agent resigns by written notice to you (or, if you are incapacitated, to the persons listed in 12 Del. C. § 49A-118).

DURABLE PERSONAL POWER OF ATTORNEY FORM

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, Section 49A-114 and Sections 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

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DURABLE PERSONAL POWER OF ATTORNEY FORM

INSTRUCTIONS

As the person completing this form, you are the Principal. This form gives another person the power to act on your behalf. The other person is your Agent.

This form allows you to designate: (1) one Agent at a time and up to two Agents in succession; (2) two or more Agents who may act independently of each other (Concurrent Agents); or (3) two or more Agents who must act together (Joint Agents).

If your Agent is unable or unwilling to act for you, your power of attorney will end unless you have named a successor Agent(s).

IF YOU HAVE QUESTIONS ABOUT THIS POWER OF ATTORNEY OR THE AUTHORITY YOU ARE GRANTING TO YOUR AGENT(S), YOU SHOULD SEEK LEGAL ADVICE BEFORE COMPLETING AND SIGNING THIS FORM.

The following form may, but need not, be used to create a durable personal power of attorney. The other sections of this chapter govern the effect of this or any other writing used to create a durable personal power of attorney. A durable personal power of attorney that varies from the following form shall not be deemed to be invalid based solely upon such variance.

DESIGNATION OF AGENT

I, __________________________________, name the following person(s) as my Agent(s):

(Name of Principal)

Name of Agent: ____________________________________________________

Agent's Address: ____________________________________________________

Agent's Telephone Number: ____________________________________________________

DESIGNATION OF ADDITIONAL OR SUCCESSOR AGENTS (OPTIONAL)

Name of Agent: ____________________________________________________

Agent's Address: ____________________________________________________

Agent's Telephone Number: ____________________________________________________

Name of Agent: ____________________________________________________

Agent's Address: ____________________________________________________

Agent's Telephone Number: ____________________________________________________

If I have named more than one Agent above, I intend for those Agents to:

________________ Act successively, one after the other

________________ Act concurrently, independent of each other

________________ Act jointly, not independent of each other

EFFECTIVE DATE

[Packet note — This product is the UPON DISABILITY (springing) variant. Sign ONLY the second choice line below. Do not sign the first line.]

You must sign ONE of these two choices:

________________________________ (Sign here if this is your choice) This power of attorney is effective immediately, and shall not be affected by my subsequent incapacity.

________________________________ (Sign here if this is your choice) This power of attorney is effective only if and while I am incapacitated as determined under 12 Del. C. § 49A-109(c).

[OPTIONAL — PERSON AUTHORIZED TO DETERMINE INCAPACITY (12 Del. C. § 49A-109(b)). Complete only if you want to name who determines your incapacity. If you leave this block blank, incapacity is determined under 12 Del. C. § 49A-109(c).]

I authorize the following person(s) to determine in a writing or other record that I am incapacitated (this person should not be my Agent):

Name of person authorized: ________________________________________________

Address: ________________________________________________

Telephone number: ________________________________________________

If I have named a person above, that person's written determination under 12 Del. C. § 49A-109(b) controls. If that person is unable or unwilling to make the determination, or if I leave this block blank, my incapacity shall be determined under 12 Del. C. § 49A-109(c). A person I authorize under this block may act as my personal representative pursuant to the Health Insurance Portability and Accountability Act [P.L. 104-191], as amended, and applicable regulations, to obtain access to my health-care information and communicate with my health-care provider (12 Del. C. § 49A-109(d)).

GRANT OF GENERAL AUTHORITY

I grant my Agent and any successor Agent general authority to act for me with respect to the following powers described in more detail as defined in the Durable Personal Power of Attorney Act, Delaware Code, Title 12, Chapter 49A.

You should READ the terms of each category of power or authority before granting any of them to your Agent. A full explanation of each power or authority is in the Delaware Code. The Delaware Code is available online. Search: Delaware Code, Title 12, Chapter 49A, and then go to the number next to the category. Example: Real Property, Section (§) 49A-204. The Delaware Code may also be available at your local library.

INITIAL each category you want to include in the Agent's general authority.

CROSS OUT each category you do not want to include in the Agent's general authority.

If you do not initial a category listed below, powers associated with that category will NOT be included as part of your Agent's general authority.

________ Real Property § 49A-204

________ Tangible Personal Property § 49A-205

________ Stocks and Bonds § 49A-206

________ Commodities and Options § 49A-207

________ Banks and Other Financial Institutions § 49A-208

________ Operation of Entity or Business § 49A-209

________ Insurance and Annuities § 49A-210

________ Estates, Trusts, and Other Beneficial Interests § 49A-211

________ Claims and Litigation § 49A-212

________ Personal and Family Maintenance § 49A-213

________ Benefits from Governmental Programs or Civil or Military Service § 49A-214

________ Retirement Plans § 49A-215

________ Taxes § 49A-216

GRANT OF SPECIFIC AUTHORITY (OPTIONAL)

PROCEED WITH CAUTION

Giving your Agent any of the following powers will give your Agent the authority to take actions that could significantly reduce your property or change how and to whom your property is distributed at your death.

You should READ the terms describing each power before granting any of them to your Agent.

INITIAL each power you want to include in the Agent's authority.

CROSS OUT each power you do not want to include in the Agent's authority.

If you do not initial a power listed below, it will NOT be included as part of your Agent's specific authority.

________ Create, amend, revoke, or terminate an inter vivos trust

________ Make a gift in excess of the limitations in the Durable Personal Power of Attorney Act, 12 Del. C. § 49A-217

________ Create or change rights of survivorship

________ Create or change a beneficiary designation

________ Delegate authority granted under the power of attorney when all successor Agents have resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve

________ Exercise fiduciary powers that the Principal has authority to delegate

________ Reject, renounce, disclaim, release, or consent to a reduction in or modification of a share in or payment from estate, trust, or other beneficial interest

________ [OPTIONAL ADDITION — not part of the enacted statutory form] Exercise all rights and powers granted to a fiduciary under the Fiduciary Access to Digital Assets and Digital Accounts Act, Chapter 50 of this title (12 Del. C. § 49A-201(b)(8)).

________ [OPTIONAL ADDITION — not part of the enacted statutory form] Make a gift, subject to the limitations of 12 Del. C. § 49A-217 (a capped gift power, as distinct from the "in excess of" line above).

RELIANCE ON THIS POWER OF ATTORNEY

Any person, including my Agent, may rely upon this power of attorney or a copy of it unless that person knows it has terminated or is invalid.

OPTIONAL ADDITIONAL PROVISIONS

[OPTIONAL ADDITIONS — not part of the enacted statutory form. A durable personal power of attorney that varies from the statutory form is not invalid solely because of the variance (12 Del. C. § 49A-301). INITIAL any provision you want to include. If you do not initial a provision, the statutory default described in the Packet Guide applies.]

________ The execution of this personal power of attorney revokes all personal powers of attorney previously executed by me. (12 Del. C. § 49A-110(e).)

________ My agent is entitled to reasonable compensation for services as agent. (12 Del. C. § 49A-112(b).)

________ If a guardian of my person or property is appointed, I request that the court appoint my then-serving agent, as provided in 12 Del. C. § 49A-108(a).

I request that the court consider the following person as guardian of my person or property: ______________________________

________ My agent's authority shall not terminate by reason of the filing of an action for dissolution or annulment of the agent's marriage to me. (12 Del. C. § 49A-110(b)(3).)

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SIGNATURE AND ACKNOWLEDGMENT

IF YOU HAVE QUESTIONS ABOUT THIS POWER OF ATTORNEY OR THE AUTHORITY YOU ARE GRANTING TO YOUR AGENT(S), YOU SHOULD SEEK LEGAL ADVICE BEFORE SIGNING THIS FORM.

IN WITNESS WHEREOF, I have hereunto set my Hand and Seal this ________ day of ________________, 20________ .

____________________________________

Witness Signature

____________________________________ (SEAL)

Your Signature

____________________________________

Print Witness Name

____________________________________

Print Your Name

I, the witness, swear that I am not related to the Principal by blood, marriage, or adoption; and that I am not entitled to any portion of the estate of the Principal under the Principal's current will or codicil, or under any current trust instrument of the Principal.

STATE OF DELAWARE :

: SS.

COUNTY OF ______________________ :

This Durable Power of Attorney was acknowledged before me by ________________________________ this ________________ day of ________________________________ 20________ .

_______________________________________________

Notarial Office

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IMPORTANT INFORMATION FOR AGENT

Agent's Duties

When you accept the authority granted under this power of attorney, a special legal relationship is created between you and the Principal. This relationship imposes upon you legal duties that continue until you resign or the power of attorney is terminated or revoked. You must:

(1) do what you know the Principal reasonably expects you to do with the Principal's property or, if you do not know the Principal's expectations, act in the Principal's best interest;

(2) act in good faith;

(3) do nothing beyond the authority granted in this power of attorney; and

(4) disclose your identity as an Agent whenever you act for the Principal by writing or printing the name of the Principal and signing your own name as "Agent" in the following manner:

________________________ by ________________________ as Agent

(Principal's Name) (Your Signature)

Except as otherwise provided in the power of attorney, you must also:

(1) not act for your own benefit;

(2) avoid conflicts that would impair your ability to act in the Principal's best interest;

(3) act with care, competence, and diligence;

(4) keep a record of all receipts, disbursements, and transactions made on behalf of the Principal;

(5) cooperate with any person who has authority to make health-care decisions for the Principal; and

(6) not act in a manner inconsistent with the Principal's testamentary plan.

Termination of Agent's Authority

You must stop acting on behalf of the Principal if you learn of any event that terminates this power of attorney or your authority under this power of attorney. Events that terminate this power of attorney or your authority to act under it include:

(1) death of the Principal;

(2) the Principal's revocation of the power of attorney or your authority;

(3) the occurrence of a termination event stated in the power of attorney;

(4) the purpose of the power of attorney is fully accomplished; or

(5) an action is filed with a court for your separation, annulment, or divorce from the Principal, unless the Principal otherwise provided in the power of attorney that such action will not terminate your authority.

Liability of Agent

The meaning of the authority granted to you is defined in the Durable Personal Power of Attorney Act, Delaware Code, Title 12, Chapter 49A. If you violate the Durable Personal Power of Attorney Act, Delaware Code, Title 12, Chapter 49A, or act outside the authority granted, you may be liable for any damages caused by your violation.

If there is anything about this document or your powers, authority, or duties as Agent that you do not understand, you should seek legal advice.

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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 ________________________ (Name of 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

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ADDITIONAL AGENT'S CERTIFICATION

[Blank copy for a successor or additional acting agent. Each person who acts as agent must execute and affix an Agent's Certification before acting (12 Del. C. § 49A-105(c)).]

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 ________________________ (Name of 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

CONVENIENCE FORM — NOT PART OF THE STATUTORY FORM — DO NOT RECORD

AFFIDAVIT OF TRUE COPY

For digital-asset requests under 12 Del. C. § 5005(e)

Use this affidavit only if your agent granted digital-assets authority needs to present a copy of the power of attorney to a custodian of digital assets (for example, an email, cloud-storage, or online-account provider). Delaware law entitles the custodian to a copy accompanied by an affidavit attesting that the copy is a true, exact, complete and unaltered photocopy of the original and that, to the best of the affiant's knowledge, the document remains in full force and effect (12 Del. C. § 5005(e)). The agent signs before a notary.

STATE OF ____________________

COUNTY OF ____________________

I, ______________________________ (name of affiant), being first duly sworn, depose and say:

1. The attached copy of the Durable Personal Power of Attorney executed by ______________________________ (name of Principal) is a true, exact, complete and unaltered photocopy of the original.

2. To the best of my knowledge, said document remains in full force and effect.

____________________________________

Affiant

____________________

Date

Sworn to and subscribed before me this ________ day of ____________________, 20________ .

_______________________________________________

Notarial Office