Delaware: Power of Attorney Requirements

The short answer

Delaware governs financial powers of attorney through the Durable Personal
Powers of Attorney Act, 12 Del. C. chapter 49A, enacted in 2010. Under
§ 49A-105(a), a personal power of attorney "must be" in writing, signed and
dated by the principal (or signed for the principal by another adult, in the
principal's presence and at the principal's direction), "signed in the
presence of a notarial officer," and "signed in the presence of 1 adult
witness" who is neither related to the principal nor a beneficiary of the
principal's estate. Notarization and a witness are both required — Delaware
doesn't offer the either/or choice some states do. There's no default
durability: the document itself must say the power survives incapacity
(§ 49A-104). It can also be written to spring into effect only at a future
date or upon incapacity (§ 49A-109).

Requirements one by one

Governing law

Chapter 49A, the Durable Personal Powers of Attorney Act (77 Del. Laws c.
467, 2010), governs a power of attorney granted by an individual acting for
themselves. An older chapter, 12 Del. C. ch. 49 (Durable Powers of Attorney),
continues to apply to durable powers of attorney chapter 49A doesn't cover —
for example, one granted by someone acting as a fiduciary or on behalf of an
entity rather than for themselves personally.

Who must sign

The principal signs, dates, and executes the document. If the principal
can't sign personally, another adult may sign the principal's name instead,
but only "in the principal's presence and at the principal's express
direction" (§ 49A-105(a)(2)).

Notarization

Mandatory. The power of attorney must be "signed in the presence of a
notarial officer" (§ 49A-105(a)(4)) — a validity requirement, not an optional
step or a mere presumption booster.

Witnesses

Also mandatory — on top of notarization, not instead of it. One adult
witness must be present at signing, and that witness cannot be related to
the principal "by blood, marriage, or adoption," and cannot be "entitled to
any portion of the estate of the principal" under the principal's existing
will, codicil, or trust (§ 49A-105(a)(5)). Choose someone with no personal
stake in the principal's estate.

Statutory form

Yes, but optional. Delaware publishes a fill-in-the-blank "Durable Personal
Power of Attorney Form" at § 49A-301, plus a separate optional "Agent's
Certification" form at § 49A-114 that an agent can use to certify facts to
third parties. Section 49A-301 states that "a durable personal power of
attorney that varies from the following form shall not be deemed to be
invalid based solely upon such variance," so any document meeting
§ 49A-105's formalities works without using either form.

Durable by default?

No. Delaware requires the document itself to show the principal's intent
that the power survive incapacity — for example, by including the words
"This power of attorney shall not be affected by the subsequent incapacity
of the principal," "This power of attorney shall become effective upon the
incapacity of the principal," or similar language (§ 49A-104). Leave that
language out, and the power of attorney is not durable.

Springing POA allowed?

Yes. A power of attorney "is effective when executed unless the principal
provides ... that it becomes effective at a future date or upon the
occurrence of a future event or contingency" (§ 49A-109(a)) — typically
incapacity. The principal may name people to determine in writing that the
event occurred (§ 49A-109(b)). If no one is named for an incapacity trigger,
or the named person can't or won't decide, a physician or the Court of
Chancery (or other court of competent jurisdiction) makes that determination
instead (§ 49A-109(c)).

Real estate extras

No execution rule specific to powers of attorney inside chapter 49A itself,
but Delaware's general property-recording law treats a "letter of attorney
concerning lands or tenements" the same way it treats a deed: once
acknowledged or proved and duly certified, it "shall ... be recorded in the
recorder's office for the county wherein such lands or tenements ... are
situated" (25 Del. C. § 151). A companion section makes clear an unrecorded
letter of attorney "shall [not] make such deed or letter of attorney evidence
without its being duly recorded" (25 Del. C. § 155) — recording isn't a
validity condition for the underlying power, but it is what makes the
document usable as proof of the agent's authority for a real estate
transaction.

Out-of-state POAs

Only if the document elects it. Under § 49A-106(a), a Delaware personal power
of attorney is valid if it complies with § 49A-105 — unless the document
itself states that it's governed by another jurisdiction's law, in which
case it's valid if it complies with that other jurisdiction's requirements
instead. Delaware has no separate default rule recognizing an out-of-state
POA simply because it was validly executed where it was signed; without a
governing-law clause pointing elsewhere, the § 49A-105 formalities (notary
and witness) are what a Delaware court or institution will look for.

What trips people up

• Notary alone isn't enough. Many people executing a POA in a
  UPOAA-style state expect notarization to be the only formality. Delaware
  additionally requires an unrelated, non-beneficiary adult witness at the
  same signing — skip the witness and the document doesn't meet
  § 49A-105(a)(5).
• Durability doesn't happen by accident. Because there's no default
  durability rule, a Delaware POA that omits the survives-incapacity language
  ends the moment the principal becomes incapacitated — exactly when it's
  usually needed most.
• An out-of-state POA may not automatically travel to Delaware. Unless
  the document names another state's law as governing, Delaware doesn't
  have a fallback rule recognizing it just because it was valid where
  signed — check § 49A-106(a) before assuming reciprocity.
• Recording matters for real estate even though it's not phrased as a
  validity rule. Section 155 (Title 25) makes an unrecorded letter of
  attorney unusable as evidence, which can stall a closing if it wasn't
  recorded alongside the deed.

Common questions

Do I need to get my Delaware power of attorney notarized? Yes — signing
in the presence of a notarial officer is mandatory under § 49A-105(a)(4).

Does my Delaware POA need witnesses? Yes, one: an adult witness who
isn't related to you and isn't a beneficiary under your current will,
codicil, or trust (§ 49A-105(a)(5)). This is required in addition to
notarization.

Will an out-of-state power of attorney work in Delaware? Only if the
document itself says another state's law governs it, and it complied with
that state's requirements (§ 49A-106(a)). Otherwise, Delaware measures it
against its own notary-and-witness rule.

Can I make my POA effective only if I become incapacitated? Yes — that's
a springing power of attorney under § 49A-109. Name someone to certify the
incapacity in writing, or a physician or the Court of Chancery will make
that determination instead.

Statutes and sources

All quotations are from the Durable Personal Powers of Attorney Act as
codified in the Delaware Code, and from Title 25's deed-recording statutes,
accessed 2026-07-04.

• 12 Del. C. § 49A-101 — "This chapter may be cited as the 'Durable
  Personal Powers of Attorney Act.'"
  View official text (delcode.delaware.gov)
• 12 Del. C. § 49A-104 — "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."
  View official text (delcode.delaware.gov)
• 12 Del. C. § 49A-105 — "(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."
  View official text (delcode.delaware.gov)
• 12 Del. C. § 49A-106 — "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."
  View official text (delcode.delaware.gov)
• 12 Del. C. § 49A-109 — "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."
  View official text (delcode.delaware.gov)
• 12 Del. C. § 49A-301 — "The following form may, but need not, be 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."
  View official text (delcode.delaware.gov)
• 25 Del. C. § 151 — "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 ... be recorded in the
  recorder's office for the county wherein such lands or tenements ... are
  situated."
  View official text (delcode.delaware.gov)
• 25 Del. C. § 155 — "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."
  View official text (delcode.delaware.gov)