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Power of Attorney in Delaware: Notary, Witness, Agent's Certification and How to Get One
A Delaware power of attorney needs a notary, one unrelated adult witness, durability wording and a signed agent's certification. Here is what the Durable Personal Powers of Attorney Act requires.
By naveen · Updated · How we research our guides
What to know
- A Delaware power of attorney must be in writing, dated, signed by your parent in the presence of a notary and one adult witness who isn't related to your parent and doesn't inherit under their will or trust (12 Del. C. § 49A-105).
- It isn't durable unless it says so: it needs wording showing the authority continues despite your parent's later incapacity (§ 49A-104).
- The agent has no authority to act until they sign an agent's certification and attach it to the power of attorney.
- A notarized power of attorney must be accepted by banks and others, with listed exceptions; § 49A-120 sets no deadline.
- Retirement Checklist turns your parent's situation into a short, ordered plan, so the power of attorney sits in the right place among everything else.
A Delaware power of attorney must contain durability wording and be signed and dated by your parent before a notary and one unrelated adult witness, and the agent can't act until signing a certification. Under 12 Del. C. § 49A-105, it must be in writing, dated, "Signed in the presence of a notarial officer" and "Signed in the presence of 1 adult witness" who is neither related to your parent by blood, marriage or adoption nor entitled to any part of their estate under their will or trust.
What is a durable power of attorney in Delaware?
In Delaware, a durable power of attorney is one that keeps working after your parent loses capacity because it contains durability wording, under the Durable Personal Powers of Attorney Act, 12 Del. C. chapter 49A. A power of attorney is "a grant of authority to an agent to act in the place of the principal, whether or not the term power of attorney is used." Your parent is the principal.
Delaware doesn't make durability automatic. Under § 49A-104, a power of attorney is durable 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. The act covers finances and property, not health care; for that, see our Delaware advance directive guide. For why families set one up early, see our guide to power of attorney for an elderly parent.
What does Delaware require for a power of attorney to be valid?
Delaware requires a dated writing signed before a notary and one qualified adult witness, and the agent's signed certification before the agent acts.
| Requirement | What 12 Del. C. § 49A-105 says |
|---|---|
| Writing, date and signature | In writing and dated, signed by your parent or by someone in their presence at their express direction |
| Notary | Signed in the presence of a notarial officer |
| One witness | One adult who isn't related to your parent by blood, marriage or adoption and isn't entitled to part of their estate under a will or trust |
| Agent's certification | Signed by the agent and attached before the agent can act |
| Notice (optional) | If there's no signed notice, the agent bears the burden of proving the document valid if challenged |
The statutory form's witness swears to both points: "I, the witness, swear that I am not related to the Principal by blood, marriage, or adoption." That rules out your parent's relatives as the witness.
What do the notice and agent's certification say?
The notice warns your parent about what the agent can and can't do, and the certification is the agent's signed promise to act properly. The notice in § 49A-105(b) is optional, but leaving it out has a cost: "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." It tells your parent that "This power of attorney does not authorize your Agent to make health-care decisions for you" and that "A court can take away the powers of your Agent if it finds your Agent is not acting properly."
The certification isn't optional. Under § 49A-105(c), the agent "shall have no authority to act as agent under the personal power of attorney unless the agent has first executed and affixed to the personal power of attorney a certification." In it, the agent promises to act in good faith, within their authority, and to "Keep the assets of the Principal separate from my assets."
Is there an official Delaware power of attorney form?
Yes, and it's optional. 12 Del. C. § 49A-301 sets out a durable personal power of attorney form that "may, but need not, be used," and a document that differs from it isn't invalid for that reason alone. The form includes the notice, witness lines, a notary acknowledgment, information for the agent and the agent's certification.
Your parent initials each category of authority they want to grant: "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." Some powers need their own express grant under § 49A-201, including making a gift, creating or changing rights of survivorship, and creating or changing a beneficiary designation. The form warns these "could significantly reduce your property or change how and to whom your property is distributed at your death."
When does it take effect, and when does it end?
"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" (§ 49A-109). The statutory form makes your parent sign one of two choices: effective immediately, or only while incapacitated. If no one is named to decide incapacity, a written determination by a physician or the Court of Chancery triggers it.
Under § 49A-110, it ends when your parent dies, revokes it, a terminating event in the document happens, its purpose is accomplished, or the agent can't serve and no other agent is named. An agent's authority also ends, unless the document says otherwise, when "An action is filed for the dissolution or annulment of the agent’s marriage to the principal." That's the filing, not the final decree.
If a court appoints a guardian, the power of attorney ends to the extent the court gives the agent's powers to the guardian. On request, the agent is to be appointed guardian "absent cause to the contrary."
What does the agent have to do?
Under § 49A-114, whatever the document says, an agent must act according to your parent's known reasonable expectations, otherwise in their best interest, in good faith, and only within the authority granted, and "keep in regular contact with the principal and communicate with the principal" as far as reasonably practicable. Unless the document says otherwise, the agent must also "Keep a record of all receipts, disbursements, and transactions made on behalf of the principal."
If your parent, a guardian or a protective government agency asks for those records, the agent must provide them "within a reasonable period of time." A spouse, child or parent of the principal can petition the Court of Chancery to compel an accounting or limit an agent (§ 49A-116). An agent is paid only if the document provides for it and the pay is reasonable. Our guide to protecting a parent from scams covers the warning signs any agent should know.
Do banks have to accept a Delaware power of attorney?
Yes for a notarized one, unless a listed exception applies. Under 12 Del. C. § 49A-120, "A person shall accept an acknowledged personal power of attorney" written in English or translated under oath, and "may not require an additional or different form of personal power of attorney for authority granted in the personal power of attorney presented." The sections we read don't set a deadline for accepting it.
The statute lists reasons someone can still refuse, such as when they wouldn't otherwise have to deal with your parent, when they know the power has ended, or when they've reported suspected abuse or exploitation to law enforcement or a social service agency. A wrongful refusal can bring a court order compelling acceptance and liability for damages, "including reasonable attorneys’ fees and costs."
Does a Delaware power of attorney need to be recorded?
For real estate, yes. Under 25 Del. C. § 151, a "letter of attorney concerning lands or tenements," acknowledged and certified, "shall" be recorded "in the recorder’s office for the county wherein such lands or tenements or any part thereof are situated." Section 171 lets a power of attorney to sell land be acknowledged the same way as a deed.
How do you get a power of attorney for an elderly parent in Delaware?
Your parent makes it. The steps:
- Talk with your parent about who they'd want acting for them, and who should succeed them.
- Choose a document: the statutory form, or one drafted for your parent's situation. Either way, it needs durability wording.
- Go through the categories with your parent; they initial what they want to grant and decide on any specific powers such as gifts.
- Your parent signs the notice and the power of attorney before a notary and one qualified witness.
- The agent signs the certification and attaches it; keep the original somewhere safe.
Timing matters because your parent has to be able to sign. If that moment has passed, the family may need a court process instead, described in conservatorship and guardianship. If the situation is complicated, it helps to know what an elder law attorney does.
How do you revoke a power of attorney in Delaware?
Your parent can revoke it, which ends it under § 49A-110, but the sections of chapter 49A we read don't prescribe a method. People who act in good faith without "actual knowledge" of the termination are protected, so a written, dated revocation sent to the agent and every bank holding a copy leaves a clear record. Under § 49A-119, notice of revocation to an officer of a bank is notice to all its employees.
Signing a new power of attorney doesn't cancel an older one unless the new one says so.
How much does a power of attorney cost in Delaware?
The costs are a notary's fee, capped at $5 for a paper document, and any attorney's fee; the statutory form is printed in the law and free to use. Under 29 Del. C. § 4311, "The maximum fee a notary public may charge for a notarial act performed with respect to a tangible record is $5.00," and $25 for an electronic record. The Delaware Notary Public Section adds that "Delaware law does not address fees a notary may charge for travel related to a notarial act."
The sections we read don't set what an attorney may charge to draft one.
Frequently asked questions
Does a power of attorney need to be notarized in Delaware?
Yes. Under 12 Del. C. § 49A-105, a Delaware personal power of attorney must be signed in the presence of a notarial officer and one qualified adult witness. The rules requiring banks and others to accept a power of attorney apply to one acknowledged before a notarial officer.
Who can witness a power of attorney in Delaware?
One adult who isn't related to your parent by blood, marriage or adoption, and who isn't entitled to any part of your parent's estate under their current will or trust. That rules out your parent's children and other relatives. The statutory form has the witness swear to both points.
Is a Delaware power of attorney durable?
Only if it says so. Under § 49A-104, it's durable 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. The statutory form builds this into its effective-date choices.
Can a Delaware power of attorney make medical decisions?
No. Chapter 49A doesn't apply to "A power of attorney to make health-care decisions," and the notice says so. Delaware uses a separate power of attorney for health care under the Uniform Health-Care Decisions Act; our Delaware advance directive guide explains it.
What if my elderly parent can no longer sign?
Someone can sign your parent's name in their presence at their express direction, but your parent still has to direct it, with the notary and witness present. If your parent can no longer make that decision, a court guardianship may be the remaining route.
Is a power of attorney from another state valid in Delaware?
Yes, if it was signed under the right law. Under § 49A-106, a durable power of attorney that isn't governed by Delaware law is validly executed if it complied with the law of the jurisdiction that determines its meaning, or with the federal requirements for a military power of attorney. A copy has the same effect as the original.
Getting started
A power of attorney is time-sensitive, because it needs your parent's signature while they can still give it, and in Delaware it needs a notary, a qualified witness and the agent's signed certification. The plan this site builds asks four questions, including which state your parents live in, and puts the handful of steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- 12 Del. C. chapter 49A, subchapter I: durability (§ 49A-104), execution, notice and certification (§ 49A-105), effective date (§ 49A-109), termination (§ 49A-110), agent duties (§ 49A-114), court relief (§ 49A-116) and acceptance (§§ 49A-119, 49A-120).
- 12 Del. C. chapter 49A, subchapter II: authority that needs an express grant (§ 49A-201) and gifts (§ 49A-217).
- 12 Del. C. chapter 49A, subchapter III: the statutory form (§ 49A-301).
- 25 Del. C. chapter 1, subchapter III: recording a power of attorney for land (§ 151).
- 29 Del. C. chapter 43, subchapter I: notary fees (§ 4311).
- Delaware Notary Public Section, FAQs: the maximum notary fee.
- Delaware Courts, Durable Power of Attorney: plain-language overview.
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