HOUSE RILL NO. 130
AS AMENDED BY SENATE AMENDMENT NO. 1
AN ACT TO AMEND CHAPTER 15, PART IV, TITLE 12 OF THE DELAWARE. CODE RELATING TO POWERS OF ATTORNEY; AND PROVIDING FOR A UNIFORM DURABLE POWER OF ATTORNEY ACT.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Part V, Title 12 of the Delaware Code by adding thereto a new chapter, designated as Chapter 49, which new chapter shall rend as follows:
"CHAPTER 49. DURABLE POWERS OF ATTORNEY
A durable power of attorney is a power of attorney by which a principal designates another his attorney-in-fact in writing, and the writing contains the words: "This power of attorney shrill 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 sutxscquent disability or incapacity.
§4902. Durable Power of Attorney Not Affected by Disability
All acts done by an attorney-in-fact pursuant to it durable power of attorney during any period of disability or incapacity of the principal have the same effect rind inure to the benefit of and by the principal, and his successors in interest, as if the principal were competrnt and not disabled.
§4903. Relation of Attorney-In-Fact to Court-Appointed Fiduciary
(a) The appointment of n guardian or other fiduciary charged with the management of the principal's property or the wire of his person shall terminate all powers of attorney created pursuant to this subchapter to the extent the powers held by the attorney-in-fact prior to the appointment of a guardian or other fiduciary are granted to the guardian or other fiduciary; provided, however, that the person or entity serving as attorney-in-fact pursuant to this subchapter shall, upon his request and absent cause to the contrary, be appointed the guardian or other fiduciary in a proceeding under Chapter 37 or Chapter 39 of this Title.
(b) After the appointment of a guiardian or other fiduciary charged with the manngernent of the principal's property or the care of his person, the attorney-in fact is accountable to such guardian or other fiduciary ns well as to the principal as to any powers which the attorney-in-fact continues to hold. A guardian or other fiduciary shall only Wive such powers to revoke or amend the powers of the attorney-in-fact as shall he given to such guardian or other fiduciary by the Court.
§4904. Power of Attorney Not Revoked Until Notice
(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 attorney-in-fact, or other person who, without actual knowledge of the death of the principal, acts in good faith under the power. Any action so token, unless otherwise invalid or unenforceable, binds the successors in interest of the principal.
(b) The disability or incapacity of a principal who ilflti previously executed it written power of attorney that is not a durable power does not revoke nor terminate the agency as to the attorney-in-fact, or other person who, without actual knowledge of the disability or incapacity of the principal, nets in good faith under the power. Any fiction so taken, unless otherwise invalid or unenforceable, binds the principal and his successors in interest.
§4905. Proof of Continuance of Durable and Other Power of Attorney by Affidavit
As to acts undertaken in good faith reliance thereon, fin affidavit executed by the attorney-in-fact under a power of attorney, durable or otherwise, stating that he 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 non-revoention or non-termination 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 nuthenticated for record is likewise recordable. This section does not affect nny provision in a power of attorney for its termination by expiration or time, the occurrence or en event other than an expressed revocation, or a change in the principal's capacity."
Section 2. This Act ,nay be cited as the Uniform Durable Power or Attorney Act.
Section 3. This Act shall he applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this Act among states enacting it.
Section 4. If any provision of this Act or its application to nny person or eireuinstances is held invalid, the invalidity does not affect other provisions or applications of the Act which can he given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
Section 5. The provisions of the present Sections 175-186 or Title 25 are hereby repealed effective on the date specified in Section 6 of this Act.
Section 6. The provisions of this Act Shall become effective on the first day of the month following the date of enactment.
Approved June 21, 1982.