Updated August 3, 2026. Quick answer: Must be dated, signed by the principal, signed in the presence of a notarial officer, AND signed in the presence of one adult witness who is not related to the principal and not a beneficiary under the power of attorney.. This state puts a form in its statute. A power of attorney here must say it is durable, or it ends at incapacity — which is the moment it was written for.
| Execution | Must be dated, signed by the principal, signed in the presence of a notarial officer, AND signed in the presence of one adult witness who is not related to the principal and not a beneficiary under the power of attorney. |
| Statutory form | Yes — 12 Del. C. § 49A-301 |
| Durability | Must say it is durable |
| Who may not witness | a person related to the principal, or a beneficiary under the power of attorney (per 12 Del. C. § 49A-105) |
| Agent must accept in writing | No |
| Statute | 12 Del. C. Chapter 49A (“Durable Personal Powers of Attorney Act”) |
What decides whether the document is valid
Must be dated, signed by the principal, signed in the presence of a notarial officer, AND signed in the presence of one adult witness who is not related to the principal and not a beneficiary under the power of attorney. Get this wrong and the document is not merely weak — it may be void, and you will find out at the moment somebody needs to use it.
Who may not witness: a person related to the principal, or a beneficiary under the power of attorney (per 12 Del. C. § 49A-105) This is the condition that most often fails in practice, because the people in the room are usually the people with an interest.
The statutory form
Delaware sets out a form in its statute at 12 Del. C. § 49A-301, but does not publish a free ready-to-use copy. Using the statutory form generally means transcribing it from the statute.
Durability — the point most people get wrong
Here a power of attorney must state that it is durable. Without that language it ends exactly when incapacity begins — which is the situation it was almost certainly written for. This is the single most consequential drafting point in this state.
Why a springing power often fails when it is needed, and why durable is usually the better default.
If a bank refuses it
Delaware addresses this by statute: Yes, in substance: 12 Del. C. § 49A-120 provides for a court order compelling acceptance and liability for damages, including reasonable attorney’s fees and costs, for wrongful refusal – but no specific numeric deadline for the third party’s initial response was found in the summary reviewed (may exist and was not fully confirmed).
What the form does not solve
- Social Security will not accept it. No power of attorney works there — a representative-payee application is the only route.
- It has to be signed while capacity is intact. The day that closes, the alternative is a court.
- Name a successor agent. A document whose only named agent has died or declined does nothing — how to choose when there is no obvious person.
All 51 jurisdictions compared.
If the free form does not fit your situation
This state puts a form in its statute but does not publish a free filled-in copy, so you are transcribing statutory text either way. LawDepot builds a state-specific power of attorney executed under this state’s witnessing and notary rules. For a complex estate or a likely family dispute, a lawyer is the better route.
LawDepot pays us a commission if you buy through this link — it costs you nothing extra. We are not a law firm and this is not legal advice. Affiliate Disclosure.
General information drawn from IRS, Medicare, HUD and state statute and regulation, not legal, tax or financial advice. Continuing-care law is state law and differs materially between states; every figure here is year-labelled and every source named. Powers of attorney, guardianship and trusts are governed by STATE law and differ materially between states. Execution requirements decide whether a document is VALID, so verify them against your own state’s current statute before signing anything. We are not a law firm and this is not legal advice.