• Wade Scott

What is a Valid Power of Attorney Document?

An Agent often meets resistance from financial institutions when they present a copy of the power of attorney document as their authority to act for the Principal. Here are the basic facts you need to know to overcome objections to the validity of the document.

A Durable Personal Power of Attorney is a legal document that authorizes the Agent to take action on behalf of the Principal for general business and financial purposes. The agent’s authority, once triggered, remains in effect until the principal, or a court, revokes it or the Principal dies.

In Delaware a valid Durable Personal Power of Attorney must have the following elements:

1. A writing

2. Dated

3. Signed by the principal

4. Signed by one unrelated, disinterested witness

5. Principal and witness signatures Notarized

6. Certification signed by agent (no Notary or witness required)

Additionally, the document should have the following elements so that its validity is not challenged based on form alone:

7. Notice of Principal section located in the front of the document and signed by the Principal (no Notary or witness required for this section).

8. Statement of durability that the authority granted the Agent remains in effect despite any subsequent (occurs after the document is signed) incapacity of the principal.

An Agent’s authority is either current or contingent. Current authority is granted by a Principal who still has decision making capacity, but as a matter of convenience authorizes the Agent to act on his behalf. Contingent authority requires a triggering event before the Agent can take action on behalf of the Principal. Typically this event is a written statement by a physician that the Principal lacks decision making capacity. You will need to present a copy of the letter with the power of attorney document.

A validly executed power of attorney document must be accepted by others unless there is actual knowledge of facts rendering the document invalid. The competence of the Principal is presumed. The Principal's signature is presumed genuine. Acceptance of the document may be refused when:

1. The person is not otherwise required to do business with the agent,

2. The requested transaction would violate current law,

3. The person has actual knowledge that the document is void, invalid, or that the agent’s authority has been revoked, or

4. The person promptly makes, or knows that another person has made, a complaint to the police or appropriate social service agency alleging fraud, abuse or undue influence.

It is common for banking institutions to wrongfully require the agent to provide other documents or to take other action such as;

1. Produce the original executed document. A copy has the force and effect of the original document.

2. To execute a similar or different form of power of attorney.

3. To produce a power of attorney document that was executed within the last six months. A validly executed document is effective and enforceable regardless of its age.

4. Require the Principal to be present for the transaction when the agent's authority to act is current.

If a person refuses to accept, or take action upon, a validly executed power of attorney document, the Principal or Agent may seek judicial relief in the Delaware Chancery Court and seek attorney fees and court costs.


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