§ 3204 — Execution of personal power of attorney — Requirements; notice; certification

(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; and

(4) Signed in the presence of a notarial officer or contain an electronic signature acceptable to the Department.

(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.

NOTICE

As the person signing this limited durable power of attorney you are the Principal.

The purpose of this power of attorney is to give the person you designate (your “Agent”) broad powers to complete all paperwork necessary to accomplish any required actions set forth in this title without advance notice to you or approval by you.

This power of attorney does not authorize your Agent to make health-care decisions for you.

Unless you specify otherwise, your Agent’s authority will continue even if you become incapacitated, or until you die or revoke the power of attorney, or until your Agent resigns or is unable to act for you. You should select someone you trust to serve as your Agent.

This power of attorney does not impose a duty on your Agent to exercise granted powers, but when powers are exercised, your Agent must use due care to act for your benefit and in accordance with this power of attorney.

Your Agent must keep your funds and other property separate from your Agent’s funds and other property.

A court can take away the powers of your Agent if it finds your Agent is not acting properly.

The powers and duties of an Agent under a durable power of attorney are explained more fully in § 3212 of this title.

If there is anything about this form that you do not understand, you should ask a lawyer of your own choosing to explain it to you.

I have read or had explained to me this notice and I understand its contents.

________________________________PrincipalDate________PrincipalDate

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(c) Regardless of the method by which a person accepts appointment as an agent under a personal power of attorney (pursuant to § 3211 of Title 21 of the Delaware Code), such 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 substantially the following form:

AGENT’S CERTIFICATION

I, ________________________________(Name of Agent), have read the attached limited durable personal power of attorney and I am the person identified as the Agent or identified as the Agent for the Principal. To the best of my knowledge this power has not been revoked. I hereby acknowledge that, when I act as Agent, I shall:

Act in accordance with the principal’s reasonable expectations to the extent actually known to me and, otherwise, in the Principal’s best interest;

Act in good faith;

Act only within the scope of authority granted in the personal power of attorney; and

To the extent reasonably practicable under the circumstances, keep in regular contact with the principal and communicate with the principal.

In addition, in the absence of a specific provision to the contrary in the limited durable personal power of attorney, when I act as Agent, I shall:

Keep the assets of the Principal separate from my assets;

Exercise reasonable caution and prudence; and

Keep a full and accurate record of all actions, receipts and disbursements on behalf of the Principal.

________________________________AgentDate________AgentDate

Legislative History

83 Del. Laws, c. 149, § 1