Delaware Advance Directive Form [PDF]

Under the Delaware Code, an advance directive for health care is defined as an individual's instructions regarding their medical care, which can include a living will and a medical power of attorney.

A living will specifies the types of medical treatment an individual wishes to receive or avoid if they are unable to communicate their preferences. A medical power of attorney appoints someone else to make medical decisions on the individual's behalf.

This document is considered a durable power of attorney, meaning it becomes effective when the individual (the declarant) cannot communicate their health care preferences directly.

Signing Requirements for Delaware Advance Health Care Directive

In Delaware, the signing requirements for an advance directive are outlined in Section 2503 (b)(1) of Title 16 of the Delaware Code and are as follows:

Signing Requirements for Delaware

The advance directive must be in writing.
It must be signed by the declarant or by another person acting at the declarant's direction and in their presence.
The document must be dated.
The healthcare advance directive must be signed in the presence of at least two adult witnesses. These witnesses have to meet the following criteria:

Witnesses cannot be related to the declarant by blood, marriage, or adoption.
They must not be entitled to any portion of the declarant's estate under any existing will, trust, or codicil at the time of signing.
No witness should have any present or potential claim against the declarant's estate.
Witnesses must not have direct financial responsibility for the declarant's medical care.
A witness should also not have a controlling interest in nor be an operator or employee of a healthcare institution where the declarant is a patient or resident.

5. Each witness has to provide a written statement confirming that they are not disqualified from serving as a witness under these requirements.

Delaware Advance Health Care Directive Revocation & Changing

According to §2503(c, d, e) of the Delaware Code, the Delaware advance directive becomes effective when it’s determined that the declarant lacks the capacity to make their own medical decisions. If the directive involves life-sustaining procedures, it becomes effective only when the person lacks capacity and has a qualifying medical condition.

On the other hand, §2504 of the Delaware Code outlines the following requirements regarding revocation of an advance directive:

Revocation Requirements

A mentally competent person can revoke their advance health care directive by signing a written statement or verbally expressing the intent to revoke it in front of two witnesses, one being a health care provider.
If the revocation is not in writing, the witnesses must create a written record, sign, and date it, which will then be added to the medical records.
Divorce or annulment automatically revokes the designation of a spouse as a health care agent unless otherwise specified.
A new advance directive overrides an older one if there are conflicts between them.

Additional Legal Considerations for Delaware Advance Health Care Directive

According to §2507 of the Delaware Code, a surrogate is someone who makes health care decisions for a patient who is unable to do that by themselves and has no designated Delaware health care proxy or guardian. The patient can pick anyone as their surrogate by informing their doctor about it in front of a witness.

If the patient hasn’t chosen anyone, a close family member can step in. In case no family member is available, a close friend can act as the surrogate if they know the patient well and are willing to help.

As stated in §2511 of the Delaware Code, someone can petition the court to appoint a guardian for a patient if they believe that health care is being withheld or withdrawn against the patient’s wishes. They can do that if they suspect that the advance directive has been falsified or coerced or if a revocation of the directive has been hidden or tampered with.

How to Choose a Health Care Agent in Delaware

When choosing a health care agent in Delaware, it is important to select someone you fully trust—someone who understands your values and medical preferences. They need to be able to handle stressful situations and communicate with healthcare providers and family members.

It is also essential that they are willing and able to follow through on your wishes. Before making a decision, have a conversation with the potential agent to ensure they can understand your wishes and preferences.

What Happens if You Don’t Have an Advance Directive in Delaware?

If you don’t have an advance directive in Delaware, decisions about your medical care may be made by a family member or a court-appointed guardian. However, without your clear instructions, family members or guardians might struggle to agree on the treatments you would want.

This lack of planning can lead to confusion and stress, which advance care planning helps to prevent.