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What is a Delaware Power of Attorney?

A Delaware power of attorney is a legal form that acts as the authorization for a person, referred to as the agent or attorney-in-fact, to make financial decisions, healthcare decisions, real estate decisions, or estate decisions on behalf of the person granting this authority. A Delaware POA is often used during the estate planning process, but there are other instances when a POA is also useful.

Quick Reference:

The person granting permission is referred to as the principal, donor, or grantor.

The person receiving authorization is known as the agent or the attorney-in-fact.

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DE POA Laws:

A Delaware power of attorney is a power of attorney form that is in accordance with Delaware’s power of attorney act. Though it is not a document that needs to be turned into the court or other legal entity, for it to be legally recognized it must conform to the Durable Personal Powers of Attorney Act (Title 12, Chapter 49), which states that:

  • The attorney-in-fact must be at least 18 years old.
  • The principal must be at least 18 years old.
  • Both the principal and attorney-in-fact must be of sound mind and understand the purpose of the document.
  • The power of attorney must be signed by both the principal and the agent, along with two or more additional witnesses who are not related to the principal or entitled to the principal’s estate.
  • The attending physician first determines if the principal is incapable of making a medical decision on their own before the attorney-in-fact may make such decisions on their behalf.
  • The agent must keep their funds separate from the principal’s funds.
  • The court may revoke the power of attorney privilege if they find that it is not being handled properly.
  • The power of attorney must be in writing and dated.

The principal has the legal right to specifically explain which powers the agent can and cannot perform on their behalf. The principal also has the legal right to revoke (terminate) the power of attorney, even if it is durable, as long as they are competent. Additionally, the POA is terminated when:

  • The principal dies.
  • The principal becomes incapacitated and the power of attorney is not durable.
  • The agent dies, becomes incapacitated, or resigns.
  • The principal and the agent are married and subsequently file for divorce or annulment and the POA does not specifically state that the fiduciary relationship between the parties will remain intact.
  • The purpose of the POA is fulfilled or the expiration date within the document passes.

Why Would You Use a Delaware Power of Attorney Form?

There are many reasons why a person would use a Maine power of attorney form to give another person the ability to make decisions related to their tangible personal property, financial institution transactions, tax matters, or their well-being. Some of those reasons include:

  • Their age, mental health reasons, or a diagnosed illness. They may want their affairs handled in certain ways. It is generally advised that everyone, including those with a terminal illness and those in perfect health, establish the appropriate powers of attorney to ensure their affairs are handled and that their wishes are fulfilled.
  • A person diagnosed with a mental illness may need a different power of attorney than a person diagnosed with a terminal illness.
  • A person with dependent children may need a different power of attorney than a person without dependent children.

The need for a power of attorney varies from person to person. There are many types of powers of attorney available. Before choosing one, you should seek legal advice. This will help you choose the one that will best meet your needs. It will also give you an opportunity to learn how to revoke the POA should it become necessary for you to do so. Here are the most common Delaware powers of attorney.

General Power of Attorney

A general power of attorney grants an agent the ability to handle all matters on behalf of the principal.

  • The attorney-in-fact is given responsibility, and legal right, to handle affairs on the principal's behalf. However, this ability is terminated if the principal becomes incapacitated, dies, or if the principal revokes the document.

Durable Power of Attorney

A durable power of attorney is an "extended version" of a general power of attorney because it goes beyond the parameters of a general power of attorney.

Guardian of Minor Power of Attorney

A guardian of minor power of attorney allows a parent or guardian to grant decision-making rights over their child to a temporary guardian in the event that the parent or guardian may not be present during a medical emergency.

  • This form is generally used if the parent or guardian must leave the country for a period of time. It is also useful if the minor child is temporarily residing or traveling with an adult who is not their parent or legal guardian.

Limited Power of Attorney

A limited power of attorney has limited power to whatever the principal specifies.

  • In many cases, an agent will have the power to handle finances, or make medical decisions, but will not have the authority to do other things such as selling real property (depending on what the principal decides). Just like a general power of attorney, the authority diminishes if the principal dies or becomes incapacitated. Additionally, once the purpose of the POA is fulfilled, the document is terminated.

Medical Power of Attorney

A medical power of attorney allows the agent to make decisions related to medical treatment on behalf of the principal.

  • This type of POA may be nondurable or durable. While a durable medical power of attorney does allow the agent to make medical decisions for the principal, it does not fully take the place of an advance healthcare directive or living will. The State of Delaware provides a free PDF download of an advance healthcare directive for the principal to complete to record their wishes while they are of sound mind.

Real Estate Power of Attorney

A real estate power of attorney form allows the agent to purchase, sell, or maintain real estate on the principal's behalf.

  • It may be durable or limited. Regardless, this type of power of attorney can include serious consequences. It is important to understand how it operates and what could happen before signing it. Seek legal advice first.  

Tax Power of Attorney

In Delaware, a tax power of attorney form is known as Form 2848. This form allows a principal to elect someone, generally an accountant or another qualified individual, to represent them with the Delaware Division of Revenue.

  • Delaware relies on IRS Form 2848 as opposed to using their own specific form.

Vehicle Power of Attorney

A vehicle power of attorney in Delaware, known as form MV386, allows the principal to appoint someone to represent them with the Delaware Department of Transportation, Division of Motor Vehicles.

  • This includes buying, selling, and transferring of vehicles.

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