Delaware Living Will Requirements

Delaware does not have a legally separate living-will statute. Title 16, Sections 2501-2530 create one umbrella term, the advance health-care directive, defined as a power of attorney for health care, a health-care instruction, or both, in the same record.

Section 2503 defines capacity as being willing and able to communicate a decision, independently or with reasonable accommodation, and understanding the nature and consequences, including the primary risks and benefits, of the health-care decision, instruction, or agent appointment being made. The statute does not use a fixed 'sound mind' phrase or state an explicit numeric age; 'individual' is defined elsewhere as an adult or emancipated minor.

Under the current statute, a witness is required only for the agent-designation part of the directive, and only one adult witness is needed, who cannot be the agent, the agent's spouse or domestic partner, or, if the person lives in a nursing home or long-term care facility, an owner, operator, employee, or contractor of that facility. A stand-alone treatment-wishes instruction requires no witness at all.

Section 2511's optional statutory form lets you choose, separately for general treatment, artificial nutrition and hydration, and pain relief, whether care should always be given or withheld if you have an incurable condition expected to cause death soon, are unconscious with no expectation of regaining consciousness, or have an irreversible condition preventing you from communicating with loved ones, caring for yourself, or recognizing family and friends.

Artificial nutrition and hydration is addressed at Section 2511's optional form, which gives it its own separate 'Food and liquids' mark-or-initial section rather than folding it into general treatment, and at Section 2519, which protects a person with a documented history of routine ANH or mechanical ventilation from having an agent or default surrogate withdraw it except in specific, narrow circumstances.

Section 2508 lets you appoint an agent to make health-care decisions for you. That is a separate function from the living-will treatment-wishes instruction covered on this page, naming an agent gives someone else decision-making authority, rather than stating your own wishes directly. For full agent-designation guidance, see Delaware Healthcare Power of Attorney.

Section 2515 lets you revoke your health-care instruction, your agent's appointment, or a default surrogate's designation, in whole or in part, at any time, by any act that clearly shows your intent to revoke, including an oral statement to a health care provider. Unlike some states, Delaware does not require a signed writing specifically to revoke an agent's authority; the same low-formality standard applies to both halves of the directive, with narrow exceptions for an adjudicated lack of capacity or an irrevocable mental-health-crisis direction under Section 2509(d).

Delaware's Uniform Anatomical Gift Act (Title 16, Chapter 27, Subchapter II, beginning at Section 2710) lets you authorize organ and tissue donation, and the Section 2511 optional advance health-care directive form includes its own dedicated organ-donation part (Part D) alongside the treatment-wishes and agent-designation parts.

Federal HIPAA regulations (45 CFR Section 164.508) govern how your health care agent can be authorized to access your protected health information once the agent-designation portion of your combined directive is in effect. This authorization supports the agent-decision-maker half of your directive; it does not change or expand your own treatment-wishes instructions.

Federal law requires Medicare- and Medicaid-participating hospitals, nursing homes, and other facilities to inform patients in writing of their right under Delaware law to make an advance directive, including stating their own treatment wishes.

A written advance health-care directive validly created outside Delaware is valid here if it complied with the law of the state specified in the directive, or the state where it was created, or with Delaware's own chapter. A person may assume such a directive is genuine and in effect unless they have good cause to believe otherwise.

A health care professional or institution acting in good faith is not subject to civil or criminal liability, or professional discipline, for complying with, or refusing to comply with, a health-care decision or advance health-care directive based on a reasonable belief about its validity or the decision-maker's authority.

A health care professional or institution may decline to follow a health-care instruction or decision if doing so conflicts with a timely communicated, conscience-based institutional policy, the professional's own religious belief or moral conviction where other law permits that refusal, generally accepted health-care standards, or a court order or other law, but must make a reasonable effort to transfer the patient and provide interim life-sustaining and comfort care in the meantime.

If you have not named an agent, or your agent is not reasonably available, Section 2512 sets a nine-tier descending priority list of default surrogates who may make health-care decisions for you, starting with an adult you have separately identified, then a spouse or domestic partner, adult child or parent, cohabitant, adult sibling, adult grandchild or grandparent, a supported-decision-making helper of the last six months, a step-child you actively parented, and finally an adult who has shown special care and concern and knows your values.

Section 2522, within this same chapter, directly addresses the relationship between your directive and a future guardianship: a guardian may not refuse to comply with, or revoke, your advance health-care directive unless a court expressly authorizes it, and, absent a court order otherwise, a health-care decision by your agent prevails over a decision by your guardian. Title 12, Sections 3901 et seq. is Delaware's separate general guardianship statute governing how a guardian of the person is appointed.

Delaware's version of a POLST/MOLST form is called DMOST, a portable medical order, separate from your advance health-care directive, signed by you and a health care practitioner, that translates your treatment wishes into actionable orders for emergency responders and providers. It supplements, and does not replace, the instructions on this page.

Delaware lets you create a directive addressing only mental health care, including preferences about hospitalization, medications, and crisis intervention. You may also include a provision making the directive irrevocable while you are experiencing a specified psychiatric or psychological crisis, an option some states call a 'Ulysses clause.' If you include that irrevocable provision, the directive must be its own separate document, signed by you and by at least two adult witnesses who are physically present, a stricter rule than the single, remote-eligible witness required for a general health care power of attorney.