Delaware General Assembly

CHAPTER 452

FORMERLY

SENATE BILL NO. 190

AN ACT TO AMEND CHAPTER I, TITLE 25, DELAWARE CODE BY ADDING A NEW SUBCHAPTER TO SAID CHAPTER TO BE DESIGNATED AS SUBCHAPTER V RELATING TO A SPECIAL POWER OF ATTORNEY FOR SMALL PROPERTY INTERESTS.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend Chapter 1, Title 25, Delaware Code, by adding a new Subchapter to be designated as Subchapter V to read as follows:

"SUBCHAPTER V. SPECIAL POWER OF ATTORNEY

FOR SMALL PROPERTY INTERESTS ACT

§175. Execution; purpose; approval

(a) If a resident of this state desires to execute a power of attorney in anticipation or because of infirmity resulting from injury, old age, senility, blindness, disease, or other related or similar cause as a means of providing for the care of his person or property or both, he shall sign the instrument in the presence of and with the approval of a judge of any court of record of the county in which the power is executed. The power is not invalidated by reason of any subsequent change in mental or physical condition of the principal, including but not restricted to incompetency.

(b) The approval of the judge may be given only if:

(1) the principal requests approval;

(0) the attorney in fact consents to serve;

(4) the provisions of this Act have been observed. Approval may be given informally in chambers or other convenient place without the necessity of service of summons or other notice and shall be endorsed upon the face of the original of the instrument. The power remains valid until terminated as provided in this act.

§176. Scope and applicability of the power

(a) The power of attorney shall show or state:

(1) the fact of execution under the provisions of this Act;

(2) the time and the conditions under which the power is to become effective;

(3) the extent and scope of the power conferred;

(4) who is to exercise the power; and

(5) the annual income covered by the instrument and the nature or description and estimated value of the property, if any, to be affected;

and may state conditions and circumstances under which the power terminates.

(b) The power may be restricted or it may grant complete authority to provide for the care of the principal's person and property. Except to the extent limited by the instrument creating the power or to the extent that court approval is required by the instrument, the attorney in fact without prior court approval may endorse checks and other instruments made payable to the principal; may sell, encumber, lease, or otherwise manage the principal's property; and may execute and deliver deeds, conveyances, stock and bond transfers, contracts, and other instruments necessary to carry out the power.

§177. Attorney in fact; filing of power

(a) The attorney in fact may be an individual, a corporation authorized by law to act in a fiduciary capacity, an agency of government, a Community Fund or United Fund participating agency.

(b) The original power of attorney shall be filed in the office of the Prothonotary or clerk of the court whose judge approves the power. A certified copy shall be filed or recorded in the office of the Recorder of Deeds of the county of the principal's residence and of each county in which real property to be affected by an exercise of the power is located.

§178. Validity of power

A power of attorney executed under authority of this Act which grants powers concerning property or income shall be approved only if limited to (1) property having a gross value not exceeding $60,000, excluding the capitalized value of any annual income, or (2) an annual money income covered by the instrument not exceeding $10,000. A performance bond shall not be filed unless required by a provision of the power.

§179. Removal of attorney in fact; appointment of successor

If the attorney in fact or any successor dies, ceases to act, refuses or is unable to serve, resigns, fails to maintain or replace a bond, or is removed for cause by a court, a successor attorney in fact may be appointed by the principal. If the principal, without having revoked the power of attorney, fails or is unable to appoint a successor within 30 days, a judge of the court which approved the power may appoint a successor, unless precluded from doing so by provisions of the original power of attorney. The appointment of a successor attorney in fact shall be in writing. If the appointment is by the principal, it is subject to approval by a judge of the court which approved the original power. The original and certified copies of the appointment of the successor shall be filed or recorded as required for an original power of attorney.

§180. Termination of power; filing; protection of third persons; acts done after termination

(a) A power of attorney terminates on:

(1) written revocation by the principal;

(0) death of the principal;

(3) order of a court appointing a guardian, conservator, committee of person or property or both of the principal, unless the order otherwise provides;

(4) expiration or termination as specified in the power of attorney; or

(5) a determination by a judge of the approving court that the value of the property or the amount of the annual money income covered by the instrument has so increased that this Act is no longer appropriately applicable.

(b) The original resignation of an attorney in fact, a written revocation of the power of attorney by a principal, or a certified copy of the death certificate of the principal or of the attorney in fact or of any court judgment or order terminating the power of attorney or removing the attorney in fact for cause, shall be filed promptly in the office of the clerk of the court whose judge approved the power, and certified copies shall be filed or recorded promptly in all offices in which a certified copy of the original power of attorney is filed or recorded. A notation of the terminating event shall be made by the clerk on the face of the original power of attorney.

(c) A person dealing with the attorney in fact is not required to inquire into the validity or adequacy of proceedings involving an approval, filing or recording of the power of attorney, to determine if the principal or attorney in fact is qualified, or to determine whether the power may have been terminated if not yet shown by filing or recordation under subsection (b). He is not required to inquire into the validity or propriety of any act of an attorney in fact apparently authorized by his approved power, or to assure the proper application by the attorney in fact of any money or property paid or delivered to him.

(d) The attorney in fact is liable to the principal and the principal's estate for all damage and loss the principal suffers because of the attorney's acts done after the attorney receives notice of the termination of his authority or after termination by provision of the power itself. After the power is terminated, other than by death of the principal, he may perform ministerial acts reasonable necessary to complete and conclude his duties.

§181. Liability of attorney in fact

Unless otherwise provided in the power of attorney, an attorney in fact not compensated for his services is not liable for losses to the principal's property unless they result from intentional wrongdoing, gross negligence, or fraud. If he is compensated for his services, he is bound by standards of conduct and liability applicable to other fiduciaries.

§182. Expenses, compensation for services

An attorney in fact is entitled to reimbursement for his reasonable expenses incurred in the performance of his duties and, unless precluded by the power of attorney, to reasonable compensation for his services, payable out of the income and assets subject to the power. The amount of compensation and time of payment may be fixed in the power.

§183. Duty to account

An attorney in fact shall account to the principal or his legal representative at times specified in the power of attorney, at any time directed by a judge of the approving court, and upon termination of the power or his authority; and he shall deliver promptly to the principal, his legal representative, or a successor attorney in fact all property held by him as attorney in fact upon termination of the power or his authority.

§184. Act limited to powers executed under it

This Act governs only powers of attorney executed under it. It does not affect powers of attorney executed under other statutes or the common law of this state.

§185. Construction

The provisions of this Act shall be liberally construed so as to effectuate its purposes.

§186. Severability

If any provision of this Act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions, of this Act are severable.

§187. No jurisdiction in Justice of the Peace courts

Other provisions of this subchapter notwithstanding the Justice of the Peace Courts shall not have jurisdiction under this subchapter."

Approved July 17, 1974.