Living will requirements in Delaware

Which document is this, really

Delaware’s law creates a single instrument, the Advance Health-Care Directive, made up of two parts. The first is your Health-Care Instruction, a written statement of the treatment you do and do not want. The second is the Power of Attorney for Health Care, the part that names the person who decides for you. The person you name is your agent.

Delaware’s chapter, restated under its own short title as the “Uniform Health-Care Decisions Act (2023)”, offers an optional combined form that carries both parts at once. You are not required to use it. Your own wording, or Myend’s, is fine as long as it meets the signing rule below. Putting the Health-Care Instruction and the Power of Attorney for Health Care in one record means a hospital that pulls your file finds your wishes and your agent’s name together, rather than two separate papers that could end up in two separate places.

This is exactly the pairing Myend’s Healthcare Directive prepares for Delaware: a Health-Care Instruction for your wishes, and a Power of Attorney for Health Care naming your agent, in one combined document ready for Delaware’s signing rule.

Who can make a Delaware Advance Health-Care Directive

Delaware sets the line at 18, the state’s general age of majority. Its own chapter adds one more route in: an emancipated minor can create an Advance Health-Care Directive too, even before turning 18, something not every state’s law spells out. Capacity is a separate, practical question rather than a diagnosis you need in hand ahead of time. It means you can understand what a Health-Care Instruction says, what naming an agent does, and what signing means, at the moment you sign. Both parts of the directive rest on that same 18-or-emancipated-minor line; Delaware’s chapter does not set a different age for the Health-Care Instruction and a different one for the Power of Attorney for Health Care.

Signing it so it counts

Delaware’s Advance Health-Care Directive combines both parts in one record, and the execution rule the chapter states belongs to the Power of Attorney for Health Care part of it: your signature, plus one adult witness, nothing more.

1. 1You sign

   You sign your Advance Health-Care Directive, or direct someone else to sign it for you in your presence.

2. 2One adult witness signs

   Delaware asks for one witness, not two, and the chapter does not offer a notary as an alternative anywhere in its text. Your witness has to be present when you sign, or when you say the document reflects your wishes, and signs to confirm they believe your signing is voluntary and knowing.

3. 3Who cannot witness

   Your witness cannot be the agent you are naming, and cannot be that agent’s spouse, domestic partner, or cohabitant. If you live in or are receiving care at a nursing home or long-term care facility, your witness also cannot be that facility’s owner, operator, employee, or contractor.

Delaware then defines “present” more generously than almost any other state. Your witness counts as present if you are physically in the same place, or on a live two-way audio and video connection that lets you see and hear each other as if you were, or even on audio alone, provided the witness already knows you personally or can authenticate who you are from your answers. So a Delaware directive can be witnessed over a video call.

Naming your agent

In the Power of Attorney for Health Care part of your directive, you name your agent, the person authorized to make health care decisions for you once you cannot make them yourself. Delaware’s chapter rules out a handful of specific people rather than broad categories. A person a court has found poses a danger to your well-being cannot serve, even where no protection-from-abuse order was issued. The owner, operator, employee, or contractor of a nursing home or long-term care facility where you live or are receiving care cannot serve either, unless that person is your family member, your cohabitant, or a descendant of your cohabitant. And anyone against whom you have a pending or existing protection-from-abuse petition or order, or who is subject to a civil or criminal order prohibiting or limiting contact with you, is disqualified as well.

Outside those specific categories, Delaware’s chapter leaves the choice to you. Once your Power of Attorney for Health Care takes effect, your agent steps into the health care decisions you would otherwise make yourself, but not all of them.

One category shows up twice in Delaware’s chapter, with the same carve-out both times. A nursing home or long-term care facility’s owner, operator, employee, or contractor is barred from serving as your witness and barred from serving as your agent, and in both places the bar lifts for the same three groups: your family member, your cohabitant, or a descendant of your cohabitant. It is one policy applied consistently, not two different rules that happen to look alike.

When it takes effect

Your agent’s power begins when a court, or a clinician following the chapter’s own procedure, finds that you lack the capacity to make a health care decision. Until that point you keep making your own decisions, in full, exactly as you did before you signed anything.

Delaware sets out who may make that finding and how. It has to rest on a contemporaneous examination by a physician, psychologist, physician associate, advanced practice registered nurse, or licensed clinical social worker with training and expertise in finding a lack of capacity, or, where a decision cannot wait without risking your life or serious harm and none of those is reasonably available, another responsible health-care professional. It has to be made to a reasonable degree of certainty and written down in a record the person making it signs, stating the cause, nature, extent and probable duration of the incapacity. And it cannot be made by your own family member, your cohabitant or their descendant, or your surrogate or their family.

The switch flips back as easily as it flipped on. Your agent’s power ceases if you are later found to have capacity, and it ceases if you object to the finding; it resumes only if the finding is then confirmed, or a court makes its own. One piece can run earlier if you want it to: your Power of Attorney for Health Care may say that your agent’s authority to see and share your medical information starts the moment you appoint them.

If you are pregnant

Delaware’s Uniform Health-Care Decisions Act says nothing about pregnancy anywhere in its text. There is no automatic suspension, no viability condition, and no line on the optional form asking you to state a preference. Your Advance Health-Care Directive applies exactly as you wrote it, pregnant or not.

Changing or cancelling it

You can revoke your agent appointment, a default-surrogate designation, or a Health-Care Instruction at any time, as long as you still have the capacity to do so. Delaware accepts almost any act that clearly shows you mean to cancel it, including telling a health care professional out loud rather than putting it in writing. That route closes once a court has found that you lack the capacity to make your own health care decisions, or once such a finding has been confirmed after an objection; at that point the ordinary path of revoking on your own is no longer open to you. A later Advance Health-Care Directive that conflicts with an earlier one revokes it only to the extent the two actually conflict, so an earlier document can still control whatever the newer one leaves unaddressed. And if you named your spouse or domestic partner as agent, that appointment ends automatically, unless your document says otherwise, in four situations: a petition for annulment, divorce, dissolution, legal separation or termination has been filed and not dismissed or withdrawn; a decree has been issued; the two of you have agreed in a record to a legal separation; or that person has deserted you for more than a year. The filing is enough on its own, which is earlier than most people expect.

Making sure it is found

Give a copy of your Advance Health-Care Directive to your agent, your physician, and the hospital you are most likely to use, and tell your family exactly where the signed original is kept. A document nobody can find works the same as no document at all, and the more common failure is a copy sitting in a drawer at home while the decision is being made somewhere else. If you ever sign a new one, replace every copy you already handed out, so an old version is not still circulating alongside the new.

If you signed your directive somewhere else and are later treated in Delaware, the chapter recognizes it as valid here if it complied with the law of the state named in the directive, or the state where you signed it if none is named, or if it complies with Delaware’s own chapter instead. That is a deliberately generous rule: it gives you two separate ways to qualify, rather than insisting on Delaware’s own signing formality alone.

This is not a POLST

Delaware runs its own medical orders program, DMOST, the Delaware Medical Orders for Scope of Treatment, under a separate chapter of state law. It is a different kind of paperwork from your Advance Health-Care Directive. A DMOST form is a set of specific medical orders that a clinician signs together with someone already facing a serious illness, meant to travel with that person between hospital, nursing facility, home, and ambulance. Your Advance Health-Care Directive, by contrast, is something you complete in advance, for a future you cannot yet see, and it needs no clinician’s signature. Myend prepares the Advance Health-Care Directive, the Health-Care Instruction and Power of Attorney for Health Care together. It does not, and cannot, produce a DMOST form, because that has to come from a treating clinician.

What is different about Delaware

Delaware rewrote its whole advance-directive chapter in 2023, and the version it kept asks for one witness, and nothing from a notary at all.

Delaware’s chapter carries its own short title, the “Uniform Health-Care Decisions Act (2023)”, the Uniform Law Commission’s rewrite of the earlier model act. The whole chapter is new law, so anything written about Delaware’s advance directive rules before that rewrite describes a version that no longer applies.

The execution rule is the headline fact of that rewrite. Delaware’s Power of Attorney for Health Care needs one adult witness, not two, and the chapter does not offer a notary as an alternative or a substitute anywhere in its text. A standalone Health-Care Instruction, naming no agent, needs no witness at all. The rewrite also wrote remote witnessing into the statute rather than leaving it to be argued about: a live video call counts as being present, and so, in the right circumstances, does a phone call.

Pregnancy gets the same light touch. Delaware’s chapter never raises the subject: no suspension, no condition, no line on the form.

Two smaller points are worth knowing. Delaware lets an emancipated minor create an Advance Health-Care Directive, not only someone who has turned 18. And its agent-eligibility rule for long-term care staff carves out more relationships than most states bother to name: a family member, a cohabitant, or a cohabitant’s descendant can all still serve. Delaware’s own medical orders program, DMOST, sits entirely apart from the Advance Health-Care Directive and only comes into play once you are already facing a serious illness.

Put together, Delaware is a state that modernized its whole framework at once rather than patching pieces of it over the years, and asks for less paperwork at signing than most states settle for.

Common questions

Sources and review