DocDraft Logo

Delaware Healthcare Power of Attorney Requirements

Delaware's health care power of attorney law is freshly rebuilt: effective September 30, 2025, the state replaced its prior statute with the Uniform Health-Care Decisions Act (2023), codified at Delaware Code Title 16, Chapter 25, Sections 2501 through 2530.

Introduction

Delaware's health care power of attorney law is freshly rebuilt: effective September 30, 2025, the state replaced its prior statute with the Uniform Health-Care Decisions Act (2023), codified at Delaware Code Title 16, Chapter 25, Sections 2501 through 2530. Under this current law, a Delaware Power of Attorney for Health Care is a legal document that lets you name someone you trust, called an agent, to make health care decisions for you if you ever lack the capacity to make them yourself. This document does not double as a financial power of attorney, since its authority is confined to health care decisions. Money, property, and bills are outside its scope. It also works differently than many people assume: signing it does not hand your agent immediate authority. Your agent can only start making decisions once you are found, through a documented clinical process, to lack the capacity to decide for yourself. Until that happens, you keep making your own health care decisions, and if you ever object to a finding that you lack capacity, your agent's authority pauses while that objection is resolved. Delaware requires only one witness to make the document valid, with no notary requirement at all, a different execution rule than Delaware's own financial durable power of attorney, which requires both a notary and a witness together. The Delaware Department of Health and Social Services publishes an optional statutory form, and there is no state registry to file the document with. You simply keep the signed original and give copies to your physician, your agent, and any alternate agents.

0/5000

Key Things to Know

  1. 1

    Delaware's health care power of attorney is governed by law that will take effect on September 30, 2025 (the Uniform Health-Care Decisions Act (2023), 16 Del. C. Chapter 25), and it works by letting you (the principal) name a trusted adult (the agent) to make health care decisions for you once you are found to lack capacity to make them yourself.

  2. 2

    Your agent's authority does not start the moment you sign. It begins only once you are found, through a documented clinical or judicial process, to lack capacity to make your own health care decisions (16 Del. C. Section 2518(a)).

  3. 3

    Unless you limit it in the document, your agent can make most health care decisions for you, but some powers, such as authorizing more than 100 days in a nursing home over your objection or voluntary psychiatric admission, only apply if you explicitly grant them in the document (Section 2518(e) to (g)).

  4. 4

    Delaware law does not bar your own treating physician from serving as your agent. The only people barred from acting as agent are those tied to a nursing home or long-term care facility where you live (unless they are family), or those subject to a protective order or court danger finding (Section 2508(b)).

  5. 5

    You need only ONE adult witness, who cannot be your agent or your agent's spouse, domestic partner, or cohabitant. Delaware does not require or offer a notary option for this document at all (Section 2508(d)).

  6. 6

    Your witness can be physically present with you, appear by real-time video, or appear by real-time audio if your identity can be verified, so remote witnessing is allowed (Section 2508(e)).

  7. 7

    You can revoke the document at any time by any act that clearly shows your intent, including telling a health care professional orally. No specific written form is required (Section 2515).

  8. 8

    If you name your spouse or domestic partner as agent, their authority ends automatically if you file for divorce or separation, not only once it is finalized, unless your document states otherwise (Section 2515(d)).

  9. 9

    Delaware has no central state registry for Health Care Powers of Attorney. Keep the signed original and give copies to your physician, your agent, and any alternate agents.

  10. 10

    This is a different document from Delaware's Durable Personal Power of Attorney, which covers property and financial decisions and requires both a notary and a witness.

Key decisions before you file

Before you file a Healthcare Power of Attorney in Delaware, a few decisions shape the document: which option to choose and what each one means. The Healthcare Power of Attorney guide walks through them.

Open the Healthcare Power of Attorney guide

Customize your Healthcare Power of Attorney Template with DocDraft

DELAWARE POWER OF ATTORNEY FOR HEALTH CARE - STATE EXECUTION TEMPLATE

NOTICE: Under Delaware Code Title 16, Chapter 25 (the Uniform Health-Care Decisions Act), this document creates a Power of Attorney for Health Care. Signing it lets you, as the "principal," name a trusted adult, your "agent," to make health care decisions on your behalf once you are unable to make them yourself. Money, property, and financial matters are outside its scope entirely.

  1. Designation of Agent I, [Principal Name], of [County], Delaware, appoint [Agent Name], of [Agent Address and Phone], as my agent to make health care decisions for me. If my agent is unwilling, unable, or not reasonably available, I appoint the following alternate agent(s), in order: [Alternate Agent 1]; [Alternate Agent 2].

  2. Grant of Authority My agent may make any health care decision I could make myself, including consenting to, refusing, or withdrawing treatment, and consenting to disclosure of my medical records. My agent must follow my documented wishes, or, if unknown, my best interest. My agent's authority is broad, but Delaware law requires separate, specific authorization for certain actions, such as voluntary mental health admission or extended nursing home placement against my objection.

  3. When My Agent's Authority Begins Signing this document does not give my agent immediate authority. My agent may act only once I am found, under Delaware law, to lack capacity to make my own decisions, a finding made by a qualified professional and documented in a signed record. This authority ends if I regain capacity, and pauses if I object, unless later confirmed.

  4. Agent Restrictions My agent may not be an owner, operator, employee, or contractor of a nursing home or long-term care facility where I reside, unless that person is my family member or cohabitant. My agent also may not act if a court finds my agent poses a danger to me or if I have a protective order against my agent.

  5. Revocation I may revoke this document at any time, by any act that clearly shows my intent, including telling a health care professional orally. No specific writing is required, except where Delaware law limits revocation after a confirmed capacity finding.

EXECUTION (Delaware Code Title 16, Section 2508): Required: I must sign this document (or direct another adult to sign my name in my presence), and it must be signed by ONE adult witness who reasonably believes I am acting voluntarily and knowingly. My witness cannot be my agent or my agent's spouse, domestic partner, or cohabitant, and, if I live in a nursing home or long-term care facility, cannot work for or own that facility. My witness may be physically present, present by real-time video, or present by real-time audio if my identity can be verified. Delaware does not require or use notarization for this document.

Note: This page covers Delaware's agent-designation, activation, and execution requirements only. For decisions about money and property, see Delaware's separate Durable Power of Attorney.

Delaware Requirements for Healthcare Power of Attorney

Designation of Healthcare Agent (16 Del. C. Section 2508(a))

The principal appoints an agent to make health care decisions on the principal's behalf by creating a power of attorney for health care (16 Del. C. Section 2508(a)).

Alternate Healthcare Agents (16 Del. C. Section 2520)

A principal may appoint one or more alternate agents who gain the same authority as the original agent if the original agent resigns, dies, becomes disqualified, is not reasonably available, or is otherwise unwilling or unable to act (16 Del. C. Section 2520).

Agent Authority Scope (16 Del. C. Section 2508(a) and Section 2517)

The power of attorney for health care authorizes the agent to make health care decisions for the principal (16 Del. C. Section 2508(a)), which the agent must exercise in accordance with the principal's known wishes or, if unknown, the principal's best interest (Section 2517(b) to (d)).

HIPAA Authorization (45 CFR Section 164.508)

Federal HIPAA regulations govern how the agent can be authorized to access the principal's protected health information once the document is in effect.

End-of-Life Decisions (16 Del. C. Section 2502(12)(c))

A health care decision the agent may make includes directing that artificial nutrition or hydration, mechanical ventilation, or other health care be provided, withheld, or withdrawn (16 Del. C. Section 2502(12)(c)).

Artificial Nutrition and Hydration (16 Del. C. Section 2519(a))

If the principal has a long-term disability requiring routine artificial nutrition, hydration, or mechanical ventilation without objection, the agent may not consent to withhold or withdraw that treatment unless the treatment is no longer necessary to sustain life or well-being, the principal expressly authorized withholding in an unrevoked health-care instruction, or the principal has suffered a major, non-recoverable decline and has not objected (16 Del. C. Section 2519(a)).

Mental Health Treatment Decisions (16 Del. C. Section 2518(e))

An agent may not consent to the principal's voluntary admission to a mental health facility unless the principal specifically authorized voluntary admission in the directive, and even then, only for the number of days specified in the directive or 72 hours, whichever is less (16 Del. C. Section 2518(e)). A principal may also create a separate advance mental health-care directive under Section 2509.

Anatomical Gifts (16 Del. C. Section 2711)

An agent appointed under a power of attorney for health care may give all or part of the principal's body for anatomical gift purposes, both while the principal is living and, with top priority among family members, after the principal's death (16 Del. C. Section 2711(a) and (c)(1)).

Effective on Incapacity Determination (16 Del. C. Section 2518(a))

The power of attorney for health care is valid once signed and witnessed, but the agent's power to make health care decisions commences only when the principal is found, under Section 2504(b) or by a court, to lack capacity, and ceases if the principal later regains capacity (16 Del. C. Section 2518(a)). Under Delaware's Uniform Health-Care Decisions Act, the agent's authority cannot be made effective immediately; it is always contingent on a finding of incapacity, with a narrow exception for accessing health information under Section 2518(c). 'Durable' is not how Chapter 25 describes this document; that term belongs to Delaware's separate financial Durable Personal Power of Attorney (Title 12, Chapter 49A), where the power continues through incapacity by default unless the document says otherwise.

Determination of Incapacity (16 Del. C. Section 2504(b))

A presumption of capacity is rebutted by a contemporaneous finding, made and documented by a physician, psychologist, physician associate, advanced practice registered nurse, or licensed clinical social worker (or, in a narrow emergency exception, another responsible health-care professional), stating the cause, nature, extent, and probable duration of the incapacity (16 Del. C. Section 2504(b)). Delaware also gives the principal a right to object to the finding, which suspends the agent's authority until the finding is confirmed by a second qualifying finding or a court (Section 2505).

Revocation Provisions (16 Del. C. Section 2515)

The principal may revoke the agent appointment or a health-care instruction at any time, in whole or in part, by any act that clearly shows intent to revoke, including an oral statement to a health care professional, except in limited situations where a lack of capacity has already been found and confirmed (16 Del. C. Section 2515(a) to (b)). If the agent is the principal's spouse or domestic partner, the agent's authority ends automatically upon the filing of a divorce or separation petition, not only its finalization, or after 1 year of desertion, unless the document states otherwise (Section 2515(d)).

Witness Requirements (16 Del. C. Section 2508(d) to (e))

Delaware requires only ONE adult witness, not two. That witness must reasonably believe the principal is acting voluntarily and knowingly, cannot be the named agent or the agent's spouse, domestic partner, or cohabitant, and, if the principal resides or receives care at a nursing home or long-term care facility, cannot be an owner, operator, employee, or contractor of that facility. The witness may be physically present, present by real-time video, or present by real-time audio with identity verification (16 Del. C. Section 2508(d) to (e)).

Agent Standards and Liability (16 Del. C. Section 2517 and Section 2523(b))

An agent has a fiduciary duty to the principal and must make decisions according to the principal's known wishes or, if unknown, the principal's best interest (16 Del. C. Section 2517(a) to (d)). An agent acting in a good faith effort to comply with these duties is not subject to civil or criminal liability or professional discipline for the resulting health care decision (Section 2523(b)).

Excluded Authority (16 Del. C. Section 2511, Part A.3, and Section 2518(e) to (g))

A principal may limit the agent's authority by stating exclusions directly in the power of attorney (16 Del. C. Section 2511, Part A.3, 'Limiting Your Agent's Authority'). Some authority is limited by statute regardless of the document's wording: an agent may not consent to voluntary psychiatric admission or to nursing-home placement beyond 100 days over the principal's objection unless the principal specifically authorized it (Section 2518(e) to (g)).

Guardian Nomination (16 Del. C. Section 2511, Part C.4)

Unlike some states, Delaware's own optional Advance Health-Care Directive form builds guardian nomination directly into the health care power of attorney itself: the principal may state who they want a court to appoint as guardian of the person if guardianship proceedings are ever initiated, typically naming the same health care agent (16 Del. C. Section 2511, Part C.4). The general court process for appointing a guardian for a person with a disability is separately set out at 12 Del. C. Section 3901.

Reliance Protection (16 Del. C. Section 2516(b) and Section 2523)

A person may assume without inquiry that an advance health-care directive is genuine, valid, and still in effect, and may rely on and implement it unless the person has good cause to believe otherwise (16 Del. C. Section 2516(b)). Health care professionals and institutions acting in good faith reliance on a directive or a surrogate's stated authority are protected from civil or criminal liability and professional discipline (Section 2523).

Patient Self-Determination Act Compliance (42 U.S.C. Section 1395cc(f))

Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a power of attorney for health care.

Frequently Asked Questions

A Health Care Power of Attorney in Delaware is a legal document, created under Delaware Code Title 16, Chapter 25, that lets you name a trusted adult (your agent) to make health care decisions for you if you are ever found to lack the capacity to make them yourself. It covers only health care decisions, such as consenting to or refusing treatment and accessing medical records, and your agent's authority begins only after a documented finding that you lack capacity.

A Health Care Power of Attorney covers only health care decisions. Delaware's Durable Personal Power of Attorney (Title 12, Chapter 49A) covers property and financial matters instead, such as banking or real estate, and its own required notice states it does not authorize health care decisions. The two documents are also executed differently: the Durable Power of Attorney requires both notarization and one witness together, and it is durable by default once signed. The Health Care Power of Attorney requires only one witness and no notary at all, but its agent's authority never begins immediately. It always waits for a documented finding that you lack capacity.

Only one adult witness. That witness must reasonably believe you are signing voluntarily and knowingly, cannot be your named agent or your agent's spouse, domestic partner, or cohabitant, and, if you live in or receive care at a nursing home or long-term care facility, cannot be an owner, operator, employee, or contractor of that facility (16 Del. C. Section 2508(d)).

No. Delaware law does not require or offer a notary option for this document. It is valid once signed by you and by one qualifying adult witness (16 Del. C. Section 2508(d)). This differs from Delaware's financial Durable Power of Attorney, which requires both a notary and a witness.

Delaware law does not categorically bar your treating physician or other health care provider from serving as your agent. The only agent disqualifications under Delaware's Uniform Health-Care Decisions Act involve a court finding of danger to you, a protective order or pending petition against the potential agent, or a tie to a nursing home or long-term care facility where you live, unless that person is your family member (16 Del. C. Section 2508(b)).

Not when you sign. Your agent's power to make health care decisions begins only once you are found, under Delaware law, to lack capacity, a finding that must be made by a qualified professional such as a physician, psychologist, physician associate, advanced practice registered nurse, or licensed clinical social worker, and documented in a signed record. The power ends if you later regain capacity and pauses if you object to the finding, unless the finding is later confirmed (16 Del. C. Sections 2504, 2518).

You can revoke it at any time by any act that clearly shows you intend to revoke it, including an oral statement to a health care professional. No specific written form is required, except in the limited situation where a finding that you lack capacity has already been confirmed (16 Del. C. Section 2515).

No. Delaware does not operate a central registry for filing or recording Health Care Powers of Attorney. This is different from Delaware's separate Donate Life Delaware Registry, which is only for organ donation decisions. You keep the signed original yourself and give copies to your physician, your agent, and any alternate agents.