In Delaware, a medical power of attorney is called an advance healthcare directive. It contains three parts:
- Part One allows you to appoint an agent to make healthcare decisions for you if you become unable to do so,
- Part Two indicates your wishes regarding end-of-life care, and
- Part Three communicates your desires regarding organ donation.
You may also see this form described as a power of attorney for health care.
Laws: The law addressing medical powers of attorney in Delaware is covered in Title 16 (Health and Safety), Chapter 25 (Healthcare Decisions).
When you execute a medical power of attorney, you may also wish to execute a durable power of attorney, which appoints an agent to handle your financial, property, and other personal matters.
Living Will provisions are included by default in a Utah medical power of attorney/advance directive form. You can fill in those sections (Parts Two and Three) if you wish to execute a living will. Provisions in Part One (that is, the medical power of attorney) are effective as long as you complete it and follow all instructions to make it effective, even if you have not filled the other two parts.
In other words, you do not have to complete all sections to create an enforceable medical power of attorney.
How to Fill in a Medical Power of Attorney in Delaware
A valid medical power of attorney meets the requirements explained in 16 Del. C. §§ 2501 to 2519. Follow these steps to ensure your medical power of attorney is enforceable and legally binding.
Step 1: Choose an agent
Your agent is designated in your medical power of attorney to make healthcare decisions on your behalf. Choose someone who is aware of your personal, religious, and philosophical values and is willing to honor them if you are unable to advocate for yourself.
Relevant Law: 16 Del. C.§ 2503 (f)
Who can’t be your agent?
If you reside in a residential long-term care facility, your agent cannot be the owner, operator, or employee of that facility or have a controlling interest in it, unless they are related to you by blood, marriage, or adoption.
Relevant Law: 16 Del. C.§ 2503 (h)
Can you have more than one agent?
Yes. The form allows you to choose one primary agent and up to two alternate agents if other appointed agents are unable or unwilling to serve.
Relevant Law: 16 Del. C.§ 2505
Step 2: Specify what healthcare decisions your agent can make
Can you limit your agent’s powers?
Yes. You specify the powers granted to your agent in Part One of the form. If you do not wish for your agent to make end-of-life decisions, specify that in Part Two or leave it blank.
Relevant Law: 16 Del. C.§ 2505
What is your agent legally unable to do?
Your agent cannot:
- Make a decision resulting in pregnancy termination, if the fetus can remain viable
- Force medical treatment that is not in line with your written preferences in the medical power of attorney
Relevant Law: 16 Del. C.§ 2503 (j)
When can your agent start making decisions for you?
Your agent can start making decisions for you when a healthcare provider determines that you lack the capacity to make those decisions on your own.
Relevant Law: 16 Del. C.§ 2503 (c)
Step 3: Sign the form
To become effective, a medical power of attorney must contain your signature and those of two witnesses. If you are physically unable to sign, you can direct another person to sign the form on your behalf.
Do you need witness or notary signatures?
Two witness signatures are required. A notary signature on its own is not considered adequate.
Relevant Law: 16 Del. C.§ 2503 (b)
Who can’t be a witness?
Witnesses cannot be:
- Related to you by blood, marriage, or adoption
- A beneficiary of any will or trust you previously executed
- Any individual with a claim against any portion of your estate
- Any individual directly responsible for your medical expenses
- Any individual with a controlling interest in or is an operator or employee of a healthcare facility where you currently receive treatment or reside
Relevant Law: 16 Del. C.§ 2503 (c)
How long is your Delaware medical power of attorney effective?
The medical power of attorney ceases being effective when you gain the capacity to make your own medical decisions or until you revoke it.
Relevant Law: 16 Del. C.§ 2503 (d)
How to Revoke a Delaware Medical Power of Attorney
The following events and actions will revoke a medical power of attorney:
- Sign a revocation of power of attorney in writing
- Communicate to two competent individuals, including one healthcare provider, that you wish to revoke a medical power of attorney
- Annulment, divorce, or filing of a dissolution of marriage petition, if the agent is the spouse of the patient
- Execute a new medical power of attorney
Relevant Law: 16 Del. C.§ 2504