Power of Attorney Requirements in Delaware

At a glance

Requirements one by one

Governing law

The Durable Personal Powers of Attorney Act governs the personal powers in 12 Del. C. ch. 49A. Section 49A-103(a) sends specified excluded powers, if durable, to Chapter 49, another applicable chapter, or Delaware common law. The execution rules below apply to a personal financial power of attorney within Chapter 49A.

Who must sign

Section 49A-105(a) requires writing and a date. The principal may sign, or another person may subscribe the principal's name in the principal's presence and at the principal's express direction. The statute does not add an adult qualification to that directed signer; it expressly does for the separate witness.

Notarization and witnesses

The power must be signed "in the presence of a notarial officer" and "in the presence of 1 adult witness" (§ 49A-105(a)(4)-(5)). The witness must be unrelated by blood, marriage, or adoption and have no share under the principal's then-existing will, codicil, amendment, or trust instrument. Both people have distinct roles in the statutory execution rule.

Durability and delayed effect

A power is durable only if it contains words such as "This power of attorney shall not be affected by the subsequent incapacity of the principal" or similar words showing that intent (§ 49A-104). Under § 49A-109(a)-(c), the principal may instead set a future date or event for effectiveness and name a person to confirm the event in writing. For an incapacity trigger with no available named decider, the statute allows a physician or court to make the written determination.

Real estate extras

Title 25 § 151 says a duly acknowledged or proved "letter of attorney concerning lands or tenements" shall be recorded in the county where the land sits when lodged there. Section 155 says the acknowledgment or proof alone does not make that letter evidence without recording. This concerns proof for a land transaction, distinct from the Chapter 49A signing rules.

Out-of-state POAs

Delaware defines a "personal power of attorney" to include an out-of-state instrument that chooses Delaware law (§ 49A-102(9)). For a personal POA, § 49A-106(a) applies Delaware's § 49A-105 execution rule unless the instrument chooses another jurisdiction's law, in which case compliance with that jurisdiction's law is the test. Section 49A-106(c) separately addresses durable powers other than personal powers; § 49A-103(c) recognizes excluded powers granted under their governing jurisdiction's law. The instrument's scope and governing-law clause therefore matter.

What trips people up

• Acceptance is separate from principal execution. Section 49A-113 says an agent may accept by exercising authority or other conduct indicating acceptance, as well as by signing a certification. Its reference to § 49A-105(c) appears in the current code although § 49A-105 has only subsections (a) and (b).
• The notice is optional, but it changes a later challenge. Section 49A-105(b) permits a principal-signed notice at the beginning of the instrument. Without it, an agent whose authority is challenged bears the burden of demonstrating validity.
• The statutory form is optional. Section 49A-301 says a durable personal POA is not invalid solely because it varies from the printed form. Its optional form does not replace § 49A-105's execution requirements.

Common questions

What duties attach when the agent accepts? Section 49A-114(a) requires the agent, while exercising authority, to act in good faith and within the granted scope, follow the principal's known reasonable expectations (or otherwise the principal's best interest), and keep in regular contact where reasonably practicable.

Will a photocopy or emailed copy work? Section 49A-106(d) gives a photocopy or electronically transmitted copy the same effect as the original, except as another statute provides.

What about a personal POA signed before October 1, 2010? Section 49A-106(b) tests its execution under the law in force when it was signed, unless the instrument chooses another jurisdiction's law.

Statutes and sources

• 12 Del. C. § 49A-101 (official text, accessed 2026-10-04):

This chapter may be cited as the "Durable Personal Powers of Attorney Act."

• 12 Del. C. § 49A-102(9) (official text, accessed 2026-10-04):

(9) “Personal power of attorney” means any durable power of attorney executed in this State or, if executed other than in this State, specifying that the laws of this State shall govern such power of attorney, other than those powers of attorney to which this chapter is not applicable as set forth in § 49A-103(a) of this title.

• 12 Del. C. § 49A-103(a) (official text, accessed 2026-10-04):

(a) This chapter shall not apply to any of the following powers of attorney which, if durable, shall be governed by Chapter 49 of this title, to the extent applicable, or by another applicable chapter or by the common law of this State:

• 12 Del. C. § 49A-103(c) (official text, accessed 2026-10-04):

(c) A power of attorney excepted from this chapter pursuant to subsection (a) of this section that was granted in compliance with the laws of the jurisdiction governing such power of attorney will be recognized and enforceable under the laws of the State of Delaware in accordance with its terms.

• 12 Del. C. § 49A-104 (official text, accessed 2026-10-04):

A power of attorney is durable if it contains the words: "This power of attorney shall not be affected by the subsequent incapacity of the principal," or "This power of attorney shall become effective upon the incapacity of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent incapacity.

• 12 Del. C. § 49A-105 (official text, accessed 2026-10-04):

(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. (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.

• 12 Del. C. § 49A-106 (official text, accessed 2026-10-04):

(a) A personal power of attorney executed on or after October 1, 2010, is validly executed if it complies with § 49A-105 of this title, unless such personal power of attorney provides that it is governed by the laws of another jurisdiction, in which case, such personal power of attorney is validly executed if such execution complies with the laws of such other jurisdiction. (b) A personal power of attorney executed before October 1, 2010, is validly executed if it complied with the laws of this State as they existed at the time of execution, unless such personal power of attorney provides that it is governed by the laws of another jurisdiction, in which case, such personal power of attorney is validly executed if such execution complied with the laws of such other jurisdiction. (c) A durable power of attorney (other than a personal power of attorney) will be deemed to be validly executed under the laws of this State if, when the power of attorney was executed, the execution complied with: (1) The law of the jurisdiction that determines the meaning and effect of the power of attorney; or (2) The requirements for a military power of attorney pursuant to 10 U.S.C. § 1044b, as amended. (d) Except as otherwise provided by statute other than this chapter, a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.

• 12 Del. C. § 49A-113 (official text, accessed 2026-10-04):

Except as otherwise provided in the personal power of attorney, a person accepts appointment as an agent under a personal power of attorney by signing the agent’s certification (pursuant to § 49A-105(c) of this title) or by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.

• 12 Del. C. § 49A-114 (official text, accessed 2026-10-04):

(a) Notwithstanding provisions in the personal power of attorney, an agent that has accepted appointment pursuant to a personal power of attorney shall, in connection with exercising the authority granted to such agent therein: (1) Act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’s best interest; (2) Act in good faith; (3) Act only within the scope of authority granted in the personal power of attorney; and (4) To the extent reasonably practicable under the circumstances, keep in regular contact with the principal and communicate with the principal.

• 12 Del. C. § 49A-109 (official text, accessed 2026-10-04):

(a) A personal power of attorney is effective when executed unless the principal provides in the personal power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency. (b) If a personal power of attorney becomes effective upon the occurrence of a future event or contingency, the principal, in the personal power of attorney, may authorize 1 or more persons to determine in a writing or other record that the event or contingency has occurred. (c) If a personal power of attorney becomes effective upon the principal's incapacity and the principal has not authorized a person or persons to determine whether the principal is incapacitated, or the person or persons authorized is or are unable or unwilling to make the determination, the personal power of attorney becomes effective upon a determination in a writing or other record by a physician or by the Court of Chancery or other court of competent jurisdiction that the principal is incapacitated.

• 12 Del. C. § 49A-301 (official text, accessed 2026-10-04):

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.

• 25 Del. C. § 151 (official text, accessed 2026-10-04):

A deed or letter of attorney concerning lands or tenements, acknowledged or proved and the acknowledgment or proof certified as provided in this chapter, shall, with the certificate of the acknowledgment or proof and all indorsements and annexations, be recorded in the recorder's office for the county wherein such lands or tenements or any part thereof are situated, when lodged in such office at any time after the sealing and delivery of such deed or letter of attorney; and the record or an office copy thereof shall be sufficient evidence.

• 25 Del. C. § 155 (official text, accessed 2026-10-04):

The private examination of a married woman, duly taken and certified, shall remain valid, although the deed upon which it is taken and certified is not recorded; but no other acknowledgment or proof, duly certified, of a deed or letter of attorney shall make such deed or letter of attorney evidence without its being duly recorded.