Durable Powers of Attorney

Del. Code tit. 12, ch. 49

in effect

Del. Code tit. 12, § 4901 Defined.

A durable power of attorney is a power of attorney by which a principal designates another agent in writing, and the writing contains the words: “This power of attorney shall not be affected by subsequent disability or incapacity of the principal,” or “This power of attorney shall become effective upon the disability or incapacity of the principal,” or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability or incapacity.

Del. Code tit. 12, § 4902 Power not affected by disability.

All acts done by an agent pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and by the principal, and the principal’s successors in interest, as if the principal did not have a disability or incapacity.

Del. Code tit. 12, § 4903 Relation of agent to court-appointed fiduciary.

(a) The appointment of a guardian or other fiduciary charged with the management of the principal’s property or the care of the principal’s person shall terminate all powers of attorney created pursuant to this chapter to the extent the powers held by the agent prior to the appointment of a guardian or other fiduciary are granted to the guardian or other fiduciary. (b) After the appointment of a guardian or other fiduciary charged with the management of the principal’s property or the care of the principal’s person, the agent is accountable to such guardian or other fiduciary as well as to principal as to any powers which the agent continues to hold. A guardian or other fiduciary shall only have such powers to revoke or amend the powers of the agent as shall be given to such guardian or other fiduciary by the court.

Del. Code tit. 12, § 4904 Death, disability or incapacity of principal.

(a) The death of a principal who has executed a written power of attorney, durable or otherwise, does not revoke nor terminate the agency as to the agent, or other person who, without actual knowledge of the death of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the successors in interest of the principal. (b) The disability or incapacity of a principal who has previously executed a written power of attorney that is not a durable power does not revoke nor terminate the agency as to the agent, or other person who, without actual knowledge of the disability or incapacity of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.

Del. Code tit. 12, § 4905 Exercise of power after revocation.

As to acts undertaken in good faith reliance thereon, an affidavit executed by the agent under a power of attorney, durable or otherwise, stating that the agent did not have at the time of exercise of the power actual knowledge of the termination of the power by revocation or of the principal’s death, disability or incapacity is conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is likewise recordable. This section does not affect any provision in a power of attorney for its termination by expiration of time, the occurrence of an event other than an expressed revocation or a change in the principal’s capacity.

Del. Code tit. 12, § 4906 Relation of this chapter to Chapter 49A of this title.

The provisions of this chapter shall not apply to any personal power of attorney governed by Chapter 49A of this title.

Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title12/c049/index.htmlFetched: 10/4/2026