When you come to our office to have your wills prepared, another document you should consider having us prepare is a durable power of attorney.

A power of attorney is a legal document in which you give legal authority to another person. If you become mentally incapacitated and don’t have a durable power of attorney, before your spouse or anyone else you trust can take control of your financial and other affairs, they would have to petition the court to become your legal guardian. This process is expensive and time consuming. If you have a durable power of attorney, the person you appoint (called an “Agent” or “Attorney-in-Fact”) can handle everything for you without having to go to court. The word “durable” indicates that there is language in the document stating your intention that the power of attorney will remain in effect even after you become incapacitated. Without that special language, the power of attorney would automatically become null and void once you became incapacitated.

When you meet with us, we will ask you to let us know who you want to give power of attorney to. This person is called your “attorney-in-fact.” We will also ask you to name an alternate attorney-in-fact in case your first choice is unable to act for you. Another decision you will make is whether to have your durable power of attorney go into effect immediately after you sign it, or whether you would prefer to have it go into effect only after you become incapacitated. We will discuss with you the pros and cons of both.

What are the duties of an attorney-in-fact? The person who accepts appointment under your power of attorney has the following duties:

1. Act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal's best interest;
2. Act in good faith;
3. Act only within the scope of authority granted in the personal power of attorney; and
4. To the extent reasonably practicable under the circumstances, keep in regular contact with the principal and communicate with the principal.
5. Act loyally for the principal's benefit;
6. Act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest;
7. Act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances;
8. Keep a record of all receipts, disbursements, and transactions made on behalf of the principal;
9. Cooperate with a person that has authority to make health-care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and, if not known, to act in the principal's best interest; and
10. Not act in a manner inconsistent with the principal's testamentary plan.

What are the powers and authority of an attorney-in-fact? Your power of attorney will grant to your agent both general authority and specific authority. For general authority, you can choose from a list of 14 categories. A detailed description of each of these 14 categories of powers and authority can be found in Chapter 49A of the Delaware Code, Title 12. The categories are:

• Real Property § 49A-204
• Tangible Personal Property § 49A-205
• Stocks and Bonds § 49A-206
• Commodities and Options § 49A-207
• Banks and Other Financial Institutions § 49A-208
• Operation of Entity or Business § 49A-209
• Insurance and Annuities § 49A-210
• Estates, Trusts, and Other Beneficial Interests § 49A-211
• Claims and Litigation § 49A-212
• Personal and Family Maintenance § 49A-213
• Benefits from Governmental Programs or Civil or Military Service § 49A-214
• Retirement Plans § 49A-215
• Taxes § 49A-216
• Gifts § 49A-217

In addition to the general authority listed above, you can grant your attorney-in-fact the authority to:

• Create, amend, revoke, or terminate an inter vivos trust
• Make a gift in excess of the limitations provided in the Grant of General Authority
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate authority granted under the power of attorney when all successor Agents have resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve
• Exercise fiduciary powers that the Principal has authority to delegate
• Reject, renounce, disclaim, release, or consent to a reduction in or modification of a share in or payment from estate, trust, or other beneficial interest

Upon your death, your durable power of attorney ends, and your will takes over. This means that after you die, instead of your attorney-in-fact handling your affairs, your executor would take control.