2023 Delaware Code › Title 16 - Health and Safety › Chapter 25. HEALTH-CARE DECISIONS › § 2503. Advance health-care directives.

§ 2503. Advance health-care directives.
(a) Subject to the limitations of this chapter, an adult who is mentally competent may:
(1) Give an individual instruction. The instruction may be limited to take effect only if a specified condition arises; and/or
(2) Execute a power of attorney for health care, which may authorize the agent to make any health-care decision the principal could have made while having capacity.
(b) (1) An advance health-care directive must be:
a. In writing;
b. Signed by the declarant or by another person in the declarant's presence and at the declarant's expressed direction;
c. Dated;
d. Signed in the presence of 2 or more adult witnesses neither of whom:
1. Is related to the declarant by blood, marriage or adoption;
2. Is entitled to any portion of the estate of the declarant under any will or trust of the declarant or codicil thereto then existing nor, at the time of the executing of the power of attorney for health-care, is entitled thereto by operation of law then existing;
3. Has, at the time of the execution of the advance health care directive, a present or inchoate claim against any portion of the estate of the declarant;
4. Has a direct financial responsibility for the declarant's medical care; or
5. Has a controlling interest in or is an operator or an employee of a health-care institution at which the declarant is a patient or resident.
(2) Each witness to the advance health-care directive shall state in writing that he or she is not prohibited under this section from being a witness.
(c) An advance health-care directive shall become effective only upon a determination that the declarant lacks capacity, and when the advance health-care directive is to be applied to the providing, withholding or withdrawal of a life-sustaining procedure, the advance health-care directive shall become effective only upon a determination that the declarant lacks capacity and has a qualifying condition.
(d) An advance health-care directive ceases to be effective upon a determination that the declarant has recovered capacity.
(e) A determination that an individual lacks or has recovered capacity that affects an individual instruction or the authority of an agent must be made by the primary physician or other physician(s) as specified in a written health-care directive; however, a power of attorney for health care may include a provision accommodating an individual's religious or moral beliefs. That provision may designate a person other than a physician to certify in a notarized document that the individual lacks or has recovered capacity.
(f) An agent shall make a health-care decision to treat, withdraw or withhold treatment on behalf of the patient after consultation with the attending physician or with the person other than a physician designated pursuant to subsection (e) of this section, and in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. If the patient's instructions or wishes are not known or clearly applicable, the agent's decision shall conform as closely as possible to what the patient would have done or intended under the circumstances. To the extent that the agent knows or is able to determine, the agent's decision is to take into account, including, but not limited to, the following factors if applicable:
(1) The patient's personal, philosophical, religious and ethical values;
(2) The patient's likelihood of regaining decision making capacity;
(3) The patient's likelihood of death;
(4) The treatment's burdens on and benefits to the patient; and
(5) Reliable oral or written statements previously made by the patient, including, but not limited to, statements made to family members, friends, health-care providers or religious leaders.
If the agent is unable to determine what the patient would have done or intended under the circumstances, the agent's decision shall be made in the best interest of the patient. To the extent the agent knows and is able to determine, the agent's decision is to take into account, including, but not limited to, the factors, if applicable, stated in this subsection.
(g) A health-care decision made by an agent for a principal is effective without judicial approval.
(h) Unless related to the principal by blood, marriage or adoption, an agent may not have a controlling interest in or be an operator or employee of a residential long-term health-care institution at which the principal is receiving care.
(i) A written advance health-care directive may include the individual's nomination of a guardian of the person.
(j) A life-sustaining procedure may not be withheld or withdrawn from a patient known to be pregnant, so long as it is probable that the fetus will develop to be viable outside the uterus with the continued application of a life-sustaining procedure.
70 Del. Laws, c. 392, §  3;