Power of attorney, health care directive and guardianship in Delaware

Financial power of attorney in Delaware

Law and official form

Law

Durable Personal Powers of Attorney Act

Uniform Power of Attorney Act

No

Official form

Statutory Form Durable Personal Power of Attorney and Agent's Certification (12 Del. C. § 49A-301)Published by Delaware Code Online

You do not have to use it.

You do not have to use the statutory form, and a business may not refuse a notarized power of attorney only because it differs from the statutory form. The form includes a witness statement and a notary certificate.

Law: 12 Del. C. §§ 49A-101, 49A-106; 12 Del. C. §§ 49A-120(a)(3), 49A-301

Signing rules

How to sign

Sign and date the durable personal power of attorney in front of a notarial officer AND one qualified adult witness. Before acting, the agent must sign the Agent's Certification attached to it.

Who signs

Signed by you, or by another person signing your name in your presence and at your express direction. It must be in writing and dated.

Notary

Required

Witnesses

1

Who cannot witness

You need one adult witness in addition to the notary. The witness cannot be related to you by blood, marriage or adoption, and cannot be entitled to any part of your estate under your current will, codicil or trust.

Agent's acknowledgment

Required. The agent has no authority to act until they sign and attach an Agent's Certification in substantially the statutory form, acknowledging their duties. A signed 'Notice' to the principal at the beginning is optional, but without it the agent has the burden of proving the power of attorney is valid if challenged.

Law: 12 Del. C. § 49A-105

Durable and springing

Is it durable?

A power of attorney is durable only if it contains words such as 'This power of attorney shall not be affected by the subsequent incapacity of the principal' or 'This power of attorney shall become effective upon the incapacity of the principal,' or similar words.

Law: 12 Del. C. § 49A-104

Durable unless it says otherwise?

No: it continues after incapacity only if it says so.

Starting later (springing)

A personal power of attorney is effective when signed unless it says it starts at a future date or event. You can name people to decide in writing that the event has happened. If it starts on incapacity and no one you named decides, a physician or the Court of Chancery can determine incapacity in writing.

Law: 12 Del. C. § 49A-109

What an agent can and cannot do

Needs express permission

• Create, amend, revoke or terminate a living (inter vivos) trust
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate authority (when all successor agents are unable or unwilling to serve)
• Exercise fiduciary powers you can delegate
• Reject, renounce, disclaim or release a share of an estate, trust or other beneficial interest
• Exercise fiduciary rights over your digital assets and accounts

No power of attorney can

A durable personal power of attorney does not give health-care decision authority; powers of attorney for health care are governed by a separate law.

Law: 12 Del. C. § 49A-103(a)(4), § 49A-105(b) notice

Law: 12 Del. C. § 49A-201(b)

Agent duties, pay and court review

Agent duties

• Act according to your reasonable expectations if known, and otherwise in your best interest
• Act in good faith and only within the authority the document gives
• Keep in regular contact with you when reasonably practicable
• Act loyally and avoid conflicts of interest
• Act with care, competence and diligence
• Keep a record of all receipts, payments and transactions
• Cooperate with your health-care decision-maker
• Not act inconsistently with your testamentary plan

Agent pay

The agent is entitled to reimbursement of reasonable expenses, but to compensation only if the power of attorney provides for it and the amount is reasonable.

Law: 12 Del. C. § 49A-112

Asking a court to review an agent

You, the agent, your spouse, child or parent, a guardian or other fiduciary, your estate's personal representative or beneficiary, a person asked to accept the power of attorney, or another interested person (meeting conditions) can petition the Court of Chancery to decide whether it is in effect, compel an accounting, modify or revoke the agent's powers, or compel acceptance. If you have capacity, the court must dismiss the petition on your motion.

Law: 12 Del. C. § 49A-116

Law: 12 Del. C. § 49A-114

When it ends and how to revoke it

It ends when

• You die
• You revoke it
• An ending event in the document happens
• Its purpose is accomplished
• The agent dies, becomes incapacitated, resigns or is revoked and no other agent is named
• The Court of Chancery revokes it
• An action is filed to dissolve or annul your marriage to the agent, unless the document says otherwise
• A court appoints a guardian and gives the guardian the same powers

Divorce ends a spouse's authority

Yes · Divorce rules in Delaware (Divorce Law Map)

How to revoke

You can revoke a durable personal power of attorney, or a particular agent's authority. The Act does not prescribe a method. Signing a new power of attorney does not revoke an older one unless the new one says so.

Telling others

Tell the agent and every business that has the power of attorney. An agent or business that acts in good faith without actual knowledge of the revocation is protected. Notice of revocation to an officer of a bank or other financial institution counts as notice to all its employees.

Law: 12 Del. C. §§ 49A-108(a), 49A-110; 12 Del. C. §§ 49A-110, 49A-119(e)

Banks, other states and real estate

Banks and other businesses

A person must accept a notarized (acknowledged) personal power of attorney written in English or translated under oath, and cannot demand a different form or refuse only because it differs from the statutory form. Refusal is allowed only for listed reasons (for example, actual knowledge it is invalid or revoked, or a good faith report of suspected abuse). A wrongful refusal can lead to a court order and liability for damages, attorneys' fees and costs.

Law: 12 Del. C. §§ 49A-119, 49A-120

Signed in another state

A personal power of attorney that says it is governed by another jurisdiction's law is validly signed if it follows that law. Other durable powers of attorney are valid if their signing followed the law that governs them or the federal military power of attorney rules. A photocopy or electronically sent copy has the same effect as the original.

Law: 12 Del. C. § 49A-106

Health care directive in Delaware

The document and its form

Document

Advance health-care directive (power of attorney for health care and/or health-care instruction)

Official form

Advance Health-Care Directive (Division of Services for Aging and Adults with Physical Disabilities form; optional form in 16 Del. C. § 2511)Published by Delaware Department of Health and Social Services, Division of Services for Aging and Adults with Physical DisabilitiesVersion: PDF file dated 9.14.26 (Delaware Uniform Health-Care Decisions Act, effective September 30, 2025)

You do not have to use it.

Living will

Health-care instruction

Part of the directive.

Delaware calls written or spoken treatment wishes a 'health-care instruction'. It can be in the same document as the power of attorney for health care, and can cover life-sustaining treatment, pain relief, who should be consulted, and even who should be your guardian or default surrogate.

Law: 16 Del. C. § 2511; 16 Del. C. §§ 2507, 2511

Signing rules

How to sign

If you name an agent, sign the power of attorney for health care with one qualified adult witness. A health-care instruction on its own does not need a witness under the statute.

Who signs

Signed by you.

Notary

Not required

Witnesses

1

Who cannot witness

A power of attorney for health care needs one adult witness who reasonably believes you are acting voluntarily and knowingly. The witness cannot be your agent or your agent's spouse, domestic partner or cohabitant. If you live or get care in a nursing home or long-term care facility, the witness cannot be its owner, operator, employee or contractor.

Nursing facilities and special settings

In a nursing home or long-term care facility, the facility's owner, operator, employees and contractors cannot be your witness.

Law: 16 Del. C. § 2508(d)(4)

Electronic signing

The witness can be present in person, by real-time audio-video, or by real-time audio if the witness knows you or can confirm your identity. An advance health-care directive or its revocation cannot be denied effect just because it is electronic.

Law: 16 Del. C. §§ 2508(e), 2516(c)

Law: 16 Del. C. §§ 2507, 2508(d), (e)

Who can be your agent and what the agent can do

Who cannot be your agent

A person cannot act as your health-care agent if a court finds they endanger your well-being; if they own, operate, work for or contract with a nursing home or long-term care facility where you live or get care (unless they are family, your cohabitant or the cohabitant's descendant); if you have a pending petition or an order for protection from abuse against them; or if they are subject to an order limiting contact with you.

Law: 16 Del. C. § 2508(b)

When the agent starts

The agent's power starts when you are found to lack capacity by a qualified professional's examination or by a court, and stops if you are later found to have capacity or you object to the finding. Your power of attorney can let the agent get your health information right away.

Law: 16 Del. C. §§ 2504, 2505, 2518(a), (c)

Decisions an agent cannot make

Without specific written authority in your directive, an agent cannot consent to voluntary admission to a mental health facility, and is limited in consenting to nursing home placement for more than 100 days. Special limits apply to stopping long-used artificial nutrition, hydration or ventilation for a person with a long-term disability.

Law: 16 Del. C. §§ 2518(e)-(g), 2519

Revoking and conflicting documents

Revoking your agent

You can revoke the appointment of an agent at any time by any act that clearly shows you intend to revoke it, including telling a health-care professional, unless a court or a confirmed capacity finding says you lack capacity to revoke.

Revoking your instructions

A health-care instruction can be revoked in whole or part the same way. A later directive revokes an earlier one to the extent they conflict.

Telling others

An agent or default surrogate who learns of a revocation must tell a responsible health-care professional as soon as reasonably feasible.

Divorce ends a spouse's authority

Yes · Divorce rules in Delaware (Divorce Law Map)

Conflicting documents

A later advance health-care directive revokes an earlier one to the extent they conflict; special rules apply to a mental-health-only directive.

Law: 16 Del. C. §§ 2510, 2515(c)

Law: 16 Del. C. §§ 2515, 2517(e)

If you have no directive

Who decides without a directive

If you lack capacity and have no available agent or guardian with health-care authority, the first reasonably available, qualified person in this priority list can decide, unless your directive says otherwise. If members of the same class disagree, the provider follows the majority of that class. You can disqualify anyone in writing or by telling them or a provider.

1. An adult you identified (not in a power of attorney) to make a decision for you
2. Your spouse or domestic partner (not if divorce or separation has been filed or granted, you agreed in a record to separate, or they deserted you for more than a year)
3. Your adult child or parent
4. Your cohabitant
5. Your adult brother or sister
6. Your adult grandchild or grandparent
7. An adult who routinely helped you with supported decision making in the past 6 months
8. An adult stepchild you actively parented
9. An adult who has shown special care and concern for you and knows your values

Law: 16 Del. C. §§ 2512, 2513, 2514

Other states, registry and medical orders

Signed in another state

A directive made outside Delaware is valid if it follows the law of the state it names (or where it was made), or Delaware's chapter.

Law: 16 Del. C. § 2516(a)

POLST (medical orders)

Delaware Medical Orders for Scope of Treatment (DMOST)

Official page

Mental health directive

You can make an advance mental health-care directive covering only mental health care. If it says you cannot revoke it during a specified psychiatric episode, it must be a separate document signed by you and at least 2 adult witnesses who are physically present, attest you understood and acted voluntarily, and are not your agent, the agent's spouse, domestic partner or cohabitant, or (if you live in one) a nursing home or long-term care facility owner, operator, employee or contractor.

Law: 16 Del. C. § 2509

Guardianship and conservatorship in Delaware

What guardianship or conservatorship is

What it is called

Guardian of the person, guardian of the property, or both, for a person with a disability; limited guardianship; interim guardian

When a court may appoint one

The Court of Chancery can appoint a guardian for an adult who, because of mental or physical incapacity, cannot properly manage or care for their person or property and as a result is in danger of losing property or being victimized, or (for a guardian of the person) of substantially endangering their own health or being abused. The court can grant full or limited powers.

Law: 12 Del. C. § 3901

Kinds

• Guardian of the person
• Guardian of the property
• Guardian of the person and property
• Limited guardianship
• Interim guardian for up to 30 days in an emergency

Law: 12 Del. C. § 3901

Who can ask, which court and your own choice

Court

Court of Chancery (New Castle, Kent or Sussex County).

Choosing your own

An agent under your durable personal power of attorney will, on the agent's request and absent cause, be appointed guardian. A health-care instruction can name the person you want as guardian.

Law: 12 Del. C. § 49A-108(a); 16 Del. C. § 2507(a)(4)

Effect on a power of attorney

Appointing a guardian ends the power of attorney to the extent the court gives the same powers to the guardian. The agent must account to the guardian for powers the agent keeps. A guardian can revoke or amend the agent's powers only as the court allows.

Law: 12 Del. C. § 49A-108

Cost, fee waiver and forms

Filing fee

$125 to file a petition to appoint a guardian for a person without capacity, including all initial filing fees.

Law: Court of Chancery Schedule of Fees and Charges, Rule 3(e), effective 6/14/24

Fee waiver

In Forma Pauperis application (Court of Chancery guardianship forms).

Forms

• Petition for Guardianship of a Person with an alleged disability's Person and Property
• Petition for the Appointment of Guardianship of a Person with an alleged disability's Person
• Affidavit of Proposed Guardian's History
• Personal Information Sheet
• In Forma Pauperis (fill-in form)
• Guardianship Handbook

Steps

Steps

Other options and where to report abuse

Supported decision-making

Supported Decision-Making

Effective 2016 (80 Del. Laws c. 427)

An adult can choose supporters to help them understand information, make and communicate their own decisions, including health-care decisions. Supporters cannot make decisions for the adult. Either side can revoke the agreement at any time in writing with notice to the others.

In writing, dated, containing the elements of the Department of Health and Social Services form, and signed by each party in the presence of 2 adult witnesses. Witnesses cannot be a supporter, a supporter's employee or agent, or someone who does not understand how the principal communicates (unless an interpreter for that communication is present). Each supporter signs a separate declaration.

Source: Official text

Less restrictive options

• Supported decision-making agreement: Supporters help the adult make their own decisions; no court is involved.
• Durable personal power of attorney: The adult names an agent for money and property while able to do so.
• Advance health-care directive and default surrogate: A named health-care agent, or a family default surrogate, makes health-care decisions without a court.

Report abuse or exploitation

Adult Protective Services, Division of Services for Aging and Adults with Physical Disabilities (DHSS) · 1-888-277-4302

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Law: 16 Del. C. §§ 9405A, 9406A

Good to know in Delaware

• Delaware requires BOTH a notary and one witness for a durable personal power of attorney, and the agent must sign an Agent's Certification before acting.

  Law: 12 Del. C. § 49A-105

• A Delaware power of attorney is not durable unless it says so.

  Law: 12 Del. C. § 49A-104

• Since September 30, 2025, Delaware follows the Uniform Health-Care Decisions Act (2023): one witness for a health-care power of attorney, witnesses can join by video or phone, and a broad default-surrogate list.

  Law: 16 Del. C. ch. 25

• An agent is paid only if the power of attorney says so.

  Law: 12 Del. C. § 49A-112

Changes in 2024–2026

84 Del. Laws c. 467 enacted the Uniform Health-Care Decisions Act (2023) as 16 Del. C. ch. 25, applying from September 30, 2025. 85 Del. Laws c. 253, c. 462 and c. 90 later amended §§ 2504, 2511 and 2527. Court of Chancery fee schedule effective June 14, 2024. No 2024-2026 amendments to 12 Del. C. ch. 49A appear in the session-law notes.

Source: new optional form, one-witness rule, default surrogates, mental health directives

Questions about powers of attorney in Delaware