DE House Bill 455

Legislation

State: Delaware
Signed: August 18, 2010

Effective: October 01, 2010
Chapter: 467

Summary

House Bill 455 enacts the Durable Personal Powers of Attorney Act, requiring a durable personal power of attorney to be signed by the principal, or by another person at the direction of the principal and in the principal's conscious presence, witnessed by one witness not related to the principal by blood or marriage or who is not entitled to a portion of the principal’s estate and acknowledged before a notarial officer.

Affects

Adds a new Chapter 49a to Title 12 of the Delaware Code.

Changes

Requires a durable personal power of attorney governed under the Act to be; (a) in writing; (b) signed by the principal or by a person signing the principal’s name in the principal’s presence and at the principal’s express direction; (c) witnessed by a person not related by blood or marriage to the principal or who is entitled to any portion of the estate of the principal under the principal’s then existing will or codicil or amendment thereto or trust instrument; (d) dated; and (e) signed in the presence of a notarial officer. (Note: The statutory form provided in the Act contains an acknowledgment certificate.)
Defines “electronic” and “sign” and permits a power of attorney document to be signed using electronic means.
Defines “acknowledged” to mean purportedly verified before a Notary Public or other individual authorized to take acknowledgments.
Clarifies that the Act does not apply to 15 types of powers of attorney that are primarily given for a commercial or business purpose; however, a power of attorney to make health care decisions is also excluded from the Act.
Requires an agent to disclose his/her representative status whenever acting for the principal by writing or printing the name of the principal and signing the agent’s own name in the following manner: “(Principal’s Name) by (Your Signature) as Agent”.
Clarifies that a person may rely upon the presumption of genuineness of a power of attorney if the person in good faith accepts an acknowledged power of attorney without actual knowledge that the signature is not genuine.
Clarifies that a person may rely upon the power of attorney as if the power of attorney were genuine, valid and still in effect, the Agent’s authority were genuine, valid and still in effect and the agent had not exceeded and had properly exercised the authority if the person accepts an acknowledged power of attorney without actual knowledge that the power of attorney is void, invalid or terminated, that the purported Agent’s authority is void, invalid or terminated or that the agent is exceeding or improperly exercising the Agent’s authority.
States the conditions under which a person must accept an acknowledged power of attorney.
Clarifies that a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.
Prescribes a statutory durable personal power of attorney form.

Analysis

House Bill 455 adds a new Chapter 49a to Title 12 of the Delaware Code entitled the “Durable Personal Powers of Attorney Act.” This Act shares some points in common with the Uniform Power of Attorney Act (UPOAA) adopted by the National Conference of Commissioners on Uniform State Laws. The Act requires the principal to sign the power of attorney or direct another person to sign the power in the principal's conscious presence. In general, the Act applies to durable personal powers, and in particular, excludes 15 types of powers from the Act and any personal power of attorney governed by Chapter 49 of Title 12 of the Delaware Code. Most important for Notaries, the Act requires a durable personal power of attorney subject to the Act to be signed in the presence of a Notary Public and witnessed by one disinterested witness. Most states have laws permitting a power of attorney to be witnessed before two uninterested witnesses or acknowledged before a Notary.

Read House Bill 455.