The Basic Steps to Create a Power of Attorney in Delaware
To create a power of attorney in Delaware, you write a document naming someone to act on your behalf, sign it in front of a notary public, and keep it somewhere safe. Delaware does not require witnesses for most powers of attorney, only a notary's signature. The document itself can be as straightforward as one page, though more detailed versions are common. You do not need a lawyer, though some people choose to hire one for complex situations.
The person you name is called your agent or attorney-in-fact. They can handle bank accounts, property, medical decisions, or other matters depending on what powers you give them. You stay in control of the document—you decide what your agent can do, when the document takes effect, and when it ends.
Key Takeaways
- Delaware power of attorney documents must be signed by you in front of a notary public, but do not require witnesses.
- You can create a general power of attorney that covers broad financial matters, or a limited one that covers only specific tasks.
- A durable power of attorney stays in effect if you become unable to make decisions, while a regular one ends if you lose mental capacity.
- You can find blank Delaware power of attorney forms online, fill them out yourself, or work with a lawyer to customize one for your situation.
- Keep the original signed and notarized document in a safe place and give copies to your agent and any institutions that will need to see it.
Choosing Between General, Limited, and Durable Powers of Attorney
A general power of attorney gives your agent broad authority to handle your finances, property, and business matters. This is useful if you are traveling, ill, or straightforward want someone else to manage your affairs. It covers bank accounts, real estate, investments, and contracts unless you specifically exclude something.
A limited power of attorney restricts your agent to specific tasks—for example, selling one piece of property, managing a bank account, or handling a single business transaction. Use this when you need help with one particular matter but want to keep other decisions in your own hands.
A durable power of attorney remains in effect even if you become mentally incapacitated. Without the word "durable" in your document, the power of attorney automatically ends if you lose the ability to make decisions. In Delaware, you create a durable power of attorney by including language stating that it survives your incapacity. Most people choose durable powers of attorney because they provide protection if illness or injury prevents you from managing your own affairs.
What Information You Need Before You Start
Gather the following before you begin writing your power of attorney: your full legal name, date of birth, and address; your agent's full legal name, address, and phone number; and a clear description of what powers you want to give your agent. If you are naming more than one agent, decide whether they act together or separately—if they must act together, one agent cannot make decisions alone.
You will also need to know when you want the document to take effect. Some powers of attorney become effective when ready when signed; others become effective only if you become incapacitated (called a "springing" power of attorney). Decide whether your agent can delegate authority to someone else, and whether you want to limit the document to a specific end date or have it continue indefinitely.
Finally, identify a notary public. You can find notaries at banks, law offices, libraries, UPS stores, and some pharmacies. Call ahead to confirm they are available and ask about their fee, which is usually between five and fifteen dollars.
Filling Out a Delaware Power of Attorney Form
Delaware does not have an official state form, but the Delaware State Bar Association and legal document websites offer templates that follow Delaware law. You can read a blank form, print it, and fill it in by hand or on a computer. The form should include your name and address at the top, the date you sign it, your agent's name and address, a description of the powers you are granting, and a statement about whether it is durable.
Write clearly and be specific about what your agent can do. Instead of "manage my finances," write "deposit and withdraw money from my bank accounts, pay my bills, and manage my investments." The more detailed you are, the fewer questions banks and other institutions will ask when your agent tries to use the document.
At the bottom of the document, leave space for your signature, the date, and the notary's signature and seal. Do not sign the document until you are in front of the notary—the notary must watch you sign.
Getting Your Document Notarized
Bring your unsigned power of attorney form and a photo ID to the notary. The notary will ask you to confirm that you are signing the document of your own free will, that you understand what it says, and that you want to proceed. The notary will then watch you sign and date the document, and will add their own signature, seal, and the date.
The notary does not read or approve the content of your power of attorney—they only verify that you are who you say you are and that you signed it willingly. This process usually takes five to ten minutes. Keep the original signed and notarized document in a safe place, such as a home safe, safe deposit box, or with your agent.
Make several copies of the notarized document. Give one to your agent, one to your bank or financial institution if you want them to have it on file, and keep one for your records. Some institutions will ask to see the original to verify the notary's seal, so do not give away your only copy.
When to Work With a Lawyer
You can create a straightforward power of attorney on your own if your situation is straightforward—you have one or two agents, your finances are not complicated, and you understand what powers you want to grant. However, consider hiring a lawyer if you own a business, have significant assets, want to create multiple documents (such as a healthcare power of attorney in addition to a financial one), or are unsure about what language to use.
A Delaware lawyer who handles estate planning can review your document, answer questions about how your agent's powers will work in practice, and make sure the language is clear enough that banks and other institutions will accept it. Lawyer fees vary, but a straightforward power of attorney typically costs between one hundred and three hundred dollars. Some lawyers offer flat fees for standard documents.
Storing and Updating Your Power of Attorney
Keep your original signed and notarized power of attorney in a find location where your agent can find it if needed. A home safe, safe deposit box, or fireproof filing cabinet all work well. Tell your agent where the document is stored and how to access it. You can also register your power of attorney with the Delaware Register in Chancery if you want a public record of it, though this is optional.
Review your power of attorney every few years or whenever your circumstances change significantly—for example, if you marry, divorce, move, or want to change who your agent is. If you need to make changes, you can create a new document rather than trying to amend the old one. The new document should state that it revokes all previous powers of attorney.
If you want to end your power of attorney before you planned to, you can revoke it at any time by signing a written revocation and notarizing it. Give copies of the revocation to your agent and to any institutions that have a copy of the original document.
Frequently Asked Questions
Do I need a lawyer to create a power of attorney in Delaware?
No. You can create a valid power of attorney using a blank form and a notary public. However, a lawyer can help if your situation is complex, if you own a business, or if you want to make sure the language is clear enough that institutions will accept it without questions.
What is the difference between a power of attorney and a healthcare power of attorney?
A power of attorney handles financial and legal matters. A healthcare power of attorney (also called a healthcare proxy or medical power of attorney) lets your agent make medical decisions if you cannot. They are separate documents, and you may want both.
Can my agent use the power of attorney after I die?
No. A power of attorney ends when you die. Your agent's authority stops at that moment. After your death, your will or the laws of intestacy determine who handles your estate.
What happens if my agent dies or becomes unable to act?
Your power of attorney ends if your agent dies or becomes incapacitated, unless you named a successor agent in the document. You can name a second or third agent to take over if the first one cannot serve. If you did not name a successor and your agent dies, you will need to create a new power of attorney.
Can I create a power of attorney that takes effect only if I become incapacitated?
Yes. This is called a springing power of attorney. You can write language stating that the document becomes effective only if a doctor certifies that you are no longer able to make decisions. However, some institutions are hesitant to accept springing powers of attorney because they are harder to verify, so a power of attorney that is effective when ready is often more practical.