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Delaware Advance Directive
Support GuideDelaware36 min read

Delaware Advance Directive

Delaware replaced its advance directive chapter in September 2025. One adult witness signs it, no notary, and nine classes may speak.

By Settled Editorial

A Delaware advance directive is one instrument with three possible shapes. 16 Del. C. § 2502(1) defines an advance health-care directive as a power of attorney for health care, a health-care instruction, or both, and the term takes in an advance mental health-care directive as well. Name an agent, write down your wishes, or do both in the same record, and each of those is a Delaware advance directive.

Every rule below was read section by section at the Delaware Code Online on September 10, 2026, and each section is cited where it appears. Read this page as a plain-language map of 16 Del. C. ch. 25 and its three companion chapters, then have a Delaware attorney draft or review what you sign. This is general information about Delaware law rather than advice about your situation.

Start with the date, because it decides whether the rest of what you find online is still true. On September 30, 2025 Delaware deleted its entire advance directive chapter and replaced it. 84 Del. Laws, c. 467 was approved September 30, 2024, and section 12 of that act gave it one year to land. Any Delaware page describing a qualifying-condition gate, a two-witness signing rule or a two-physician certification of terminal illness is describing repealed law.

One Act, Three Instruments, and a Fourth That Is Not a Directive

DocumentStatuteSigningWhat switches it on
Health-care instruction, Delaware's living will16 Del. C. § 2507Nothing. No signature, no witness, no writingWhatever condition you write into it, or none
Power of attorney for health care16 Del. C. § 2508A record, your signature, one adult witnessA finding that you lack capacity under § 2504(b) or by a court
Advance mental health-care directive16 Del. C. § 2509Follows § 2507 or § 2508, unless it carries a § 2509(d) irrevocability clause, which takes two witnessesSame capacity trigger, limited to mental health care
DMOST form, Delaware's POLST16 Del. C. ch. 25ASigned by the patient or an authorized representative, plus a health-care practitioner, datedCompletion. It is a medical order and takes effect as written

Chapter 25 is the umbrella. Chapter 25A carries the Delaware Medical Orders for Scope of Treatment Act. Chapter 25B lets a health-care institution petition for a guardian when no surrogate can be found and puts a mental-health-directive awareness duty on institutions providing mental health care. Chapter 25C, the Ron Silverio/Heather Block End of Life Options Law, sits alongside them and is out of scope for a directive: 16 Del. C. § 2504C(c) says a request for medication to end life must be made by the terminally ill individual and may not be made by a guardian, a surrogate, or the individual in an advance health-care directive.

Delaware adopted the 2023 revision of the uniform act rather than the 1993 version most states enacted, and § 2501 says so in its own short title. That matters when you compare Delaware to another "UHCDA state". The 2023 revision rewrote capacity, added the objection right, added the mental-health directive, took the surrogate ladder to nine classes and cut the signing formalities, so an answer borrowed from a 1993-version state will often be wrong here.

Signing: One Adult Witness, and Delaware Never Says Notary

16 Del. C. § 2508(d) asks for three things and stops. The power of attorney for health care must be in a record, signed by you, and signed by one adult witness who satisfies all five of these:

  1. Reasonably believes your act of creating the power is voluntary and knowing.
  2. Is not the agent you appointed.
  3. Is not the agent's spouse, domestic partner, or cohabitant.
  4. If you live in or are receiving care in a nursing home or long-term care facility, is not the owner, operator, employee or contractor of that home or facility.
  5. Is present when you sign, or present when you say that the power reflects your wishes.

The word notary appears nowhere in the 30 sections of chapter 25. There is no notary requirement, no notary alternative to the witness, and no remote-notarization question to answer. Chapter 25 does not define "adult" either, and 1 Del. C. § 701 supplies the floor: a person of 18 years or older is of full legal age for all purposes unless a statute says otherwise.

Delaware then does something few states do. Your witness does not have to be in the room. 16 Del. C. § 2508(e) treats a witness as present in three situations: physically in the same location; on a real-time audio and visual connection equivalent to being in the same location; or on an audio-only real-time connection, so long as the witness personally knows you or can authenticate your identity from accurate answers you give. Section 2516(c) adds that a directive, a revocation or a signature on either may not be denied legal effect solely because it is electronic, and "record" at § 2502(25) already covers information stored electronically and retrievable in perceivable form.

Five people are barred from serving as your agent once you lack capacity, under § 2508(b): anyone a court finds poses a danger to your well-being, even without a protection from abuse order; the owner, operator, employee or contractor of a nursing home or long-term care facility where you live or receive care, unless that person is a family member, your cohabitant, or the cohabitant's descendant; anyone against whom you have a pending protection from abuse petition; anyone against whom you hold such an order; and anyone subject to a civil or criminal order limiting contact with you.

Nothing in § 2508 asks for a date, though the optional form at § 2511 leaves a line for one. Co-agents are allowed and each may act independently unless your document says otherwise, and you may name one or more alternates, under § 2520.

Your Written Wishes Need No Formality at All

This is the largest break from the old Delaware chapter, and it surprises people. A health-care instruction under 16 Del. C. § 2507 carries no execution rule. No signature, no witness, no notary, and no writing. Section 2502(14) defines the instruction as a direction "whether or not in a record", so a Delaware health-care instruction can be spoken.

The safeguard sits on the clinician rather than on you. Under § 2507(b) the health-care professional who receives your instruction must document it and its date in your medical record, or pass it to the records administrator who must. Section 2521(e)(1) then requires the professional or institution to comply with an instruction you gave about your own health care, and § 2521(e)(2) requires compliance with a reasonable interpretation of that instruction by your surrogate.

Section 2507(a) sets out what an instruction may reach: preferences about professionals and institutions, how a decision gets made and communicated, who should and should not be consulted, who you want as guardian if one is ever appointed, and who you want to serve as a default surrogate. An instruction may live in the same record as your power of attorney, under § 2507(d), and the optional form does exactly that.

Delaware prints one form, at 16 Del. C. § 2511, introduced by the words "The following form may be used". It runs in six parts: Part A names an agent and an alternate and may limit the agent's authority; Part B states wishes about life-sustaining treatment, food and liquids, pain relief, and a set of ranked priorities; Part C grants the two special powers described below plus flexibility for your agent and a guardian nomination; Part D records organ donation; Part E holds your signature and the single witness block; Part F is guidance addressed to your agent. Using it is optional. A directive that ignores the form is valid so long as § 2508(d) is met for any agent appointment.

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Incapacity Is the Only Trigger, and You Can Argue With It

Under 16 Del. C. § 2518(a) an agent's power and a default surrogate's power both commence when you are found under § 2504(b), or by a court, to lack capacity to make a health-care decision. There is no terminal-condition requirement and no permanent-unconsciousness requirement anywhere in chapter 25.

Capacity is presumed under § 2504(a), and the presumption falls only if a court has found otherwise or a § 2504(b) finding rebuts it. That finding takes three things together:

  • A contemporaneous examination by a physician, psychologist, physician associate, advanced practice registered nurse or licensed clinical social worker, licensed or authorized in Delaware and trained in making the finding. Where a decision must be made promptly to avoid loss of life or serious harm and none of those five is reasonably available, another responsible health-care professional may make it.
  • A finding made in accordance with accepted professional standards and the finder's scope of practice, to a reasonable degree of certainty.
  • Documentation in a record signed by the finder, giving an opinion on the cause, nature, extent and probable duration of the lack of capacity.

Section 2504(c) rules out the people closest to the outcome: the finding may not be made by your family member, by your cohabitant or the cohabitant's descendant, or by your surrogate or the surrogate's family member or descendant.

Then comes the part a reader is least likely to expect. You can object, and the objection suspends the finding. Under § 2505(c) you may object by telling a responsible health-care professional, in a record, or by another act that clearly indicates objection. Section 2505(d) then requires that you be treated as having capacity unless one of four things happens: you withdraw the objection, a court finds you lack capacity, care must be given promptly to avoid imminent loss of life or serious harm, or a second finding is made by a different qualified clinician who did not make the first finding and is not that finder's family member, cohabitant, or the cohabitant's descendant.

Section 2505(e) closes one of those four doors. A second finding is not enough where you are asking for life-sustaining treatment to be provided or continued and the finding is being used to withhold or withdraw it. Authority ceases if you are later found to have capacity or you object, and it resumes only if the objection route was the cause and the finding is then confirmed or a court rules against you.

One narrow point of naming. The five clinician categories above appear in the Code as amended by 85 Del. Laws, c. 253, which renamed the physician assistant a physician associate. Section 23 of that act, approved May 12, 2026, makes it effective immediately but implemented on the earlier of one year from enactment or approval of the enabling regulations by the Board of Medical Licensure and Discipline, so the title may still be in transition when you read this. The clinician who may make the finding is the same either way.

Two Powers Your Agent Does Not Get Unless You Grant Them

Both are decisions families assume an agent can make, and Delaware withholds both by default.

Voluntary mental-health admission. 16 Del. C. § 2518(e) bars an agent or default surrogate from consenting to your voluntary admission to a facility for mental health treatment unless you specifically authorized it in a directive in a record, and the admission "is for no more than the maximum of the number of days specified in the directive or 72 hours, whichever is less". Part C item 1 of the § 2511 form asks you to write in a number of days and suggests 7, 14 or 30. Those two passages sit awkwardly together, and which one governs a 14-day authorization is a question for a Delaware attorney rather than a page like this one.

Nursing home placement past 100 days. Section 2518(f) bars consent to a placement intended to last more than 100 days if an alternative living arrangement is reasonably feasible, or you object, or you are not terminally ill. Section 2518(g) lifts that bar only where you specifically authorized it in a directive in a record. Part C item 1 of the form carries that grant as a second box, and the form states in terms that an unmarked box means your agent may not do it.

Section 2518(d) runs the other way and hands over a power by default. Where nobody else is authorized, your agent or default surrogate may apply for public or private health insurance and benefits, file a claim, and appeal one internally, administratively or judicially. Holding that power creates no duty to use it.

The Feeding Tube and Ventilator Limit Nobody Expects

16 Del. C. § 2519(a) protects a specific person: someone with a long-term disability requiring routine treatment by artificial nutrition, hydration or mechanical ventilation, and a history of using that treatment without objection. For that person an agent or default surrogate may not consent to withhold or withdraw the treatment. Three exceptions lift the bar:

  1. The treatment is not necessary to sustain life or maintain well-being.
  2. The individual expressly authorized the withholding or withdrawal in a health-care instruction that has not been revoked.
  3. The individual has experienced a major reduction in health or functional ability from which recovery is not expected even with other appropriate treatment, and has neither given a direction inconsistent with withholding or withdrawal nor communicated, verbally or nonverbally, a desire for the treatment.

Read the reach of that. It binds the agent you chose yourself, not only a stranger acting as default surrogate, and it protects someone who has lived with a ventilator or a feeding tube for years. Exception two is the drafting lesson: if you want that decision to be available, say so in your own words in the document.

Section 2519(b) puts a separate ceiling on default surrogates alone. A default surrogate may not make a decision that under other Delaware law may not be made by a guardian, or may be made by a guardian only with specific court authorization.

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If You Name Nobody, Nine Classes Can Speak

16 Del. C. § 2512(a) lets a default surrogate act when you lack capacity and no agent, and no guardian authorized to make health-care decisions, has been appointed or is reasonably available. The ladder in § 2512(b) runs in descending order, and it opens with the words "Unless the individual has an advance health-care directive that indicates otherwise", so your own document can rearrange or displace it.

  1. An adult you identified, other than in a power of attorney for health care, to decide for you if you cannot.
  2. Your spouse or domestic partner, subject to the marital-breakdown conditions below.
  3. Your adult child or parent. Child and parent share one class here rather than sitting on separate rungs.
  4. Your cohabitant, defined at § 2502(5) as one of two people who have lived together as a couple for at least 1 year after each became an adult or was emancipated and who are not married to and not domestic partners with each other.
  5. Your adult sibling.
  6. Your adult grandchild or grandparent.
  7. An adult not already listed who routinely helped you with supported decision making during the preceding 6 months.
  8. Your adult stepchild not already listed whom you actively parented during their minor years and with whom you have an ongoing relationship.
  9. An adult not already listed who has shown special care and concern for you and is familiar with your personal values.

Two members of one class who disagree do not deadlock the hospital. Section 2513 runs a majority rule: the responsible health-care professional follows the majority of the highest-priority class members who have spoken and who the professional reasonably believes are acting consistently with their § 2517 duties. An even split sends the professional to solicit the views of class members who have not yet spoken, then back to the majority of those who have. A class still evenly divided after that effort falls to other Delaware law.

A professional may require anyone assuming default-surrogate authority to give a declaration in a record, under penalty of perjury, establishing that authority (§ 2512(c)). Refusing is itself a disqualifier under § 2514(b)(3). A decision by a default surrogate takes effect without judicial approval, as does a decision by an agent.

You can also strike someone off the list yourself. Under § 2514(a) you may disqualify a person in a signed record, or verbally or nonverbally to that person, to someone else, or to a responsible health-care professional. That disqualification works even if you lack capacity to make a directive, so long as you clearly communicate the desire that the person not decide for you.

Divorce Revokes Your Spouse on the Filing, Not the Decree

16 Del. C. § 2515(d) fires earlier than most people assume. Unless your directive says otherwise, the appointment of a spouse or domestic partner as agent is revoked if any of the following happens: a petition for annulment, divorce, dissolution of marriage, legal separation or termination has been filed and not dismissed or withdrawn; such a decree has been issued; the two of you have agreed in a record to a legal separation; or the spouse or domestic partner has deserted you for more than 1 year.

The same four conditions knock a spouse or domestic partner out of class 2 of the surrogate ladder under § 2512(b)(2). Two things follow. The mere filing ends the authority, which can be months before any decree. And you can switch the whole rule off by saying so in the directive.

Revoking It: Say So Out Loud

Delaware asks for no formality here either. Under 16 Del. C. § 2515(a) and (b) you may revoke the appointment of an agent, the designation of a default surrogate, or a health-care instruction, in whole or in part, by any act that clearly indicates the intent to revoke, including an oral statement to a health-care professional. No writing, no witness, no notary. An agent you appointed in writing can be removed by speech.

Revocation is blocked in three situations and only three, listed at § 2515(a)(1) to (3): a court has found you lack capacity to revoke; you were found under § 2504(b) to lack that capacity and, having objected, the finding was confirmed; or you created an advance mental health-care directive containing a § 2509(d) irrevocability direction and are experiencing the psychiatric or psychological event named in it.

A later document revokes an earlier one only to the extent of the conflict, under § 2515(c), so an old directive survives on the points a new one does not reach. A later health-care instruction does the same to an earlier one, including an instruction already written into a medical order (§ 2507(c)). A guardian may refuse to comply with your directive or revoke it only where the appointing court issues an order expressly permitting that act (§ 2522(a)), and unless a court orders otherwise, a decision by your agent prevails over a decision by your guardian (§ 2522(b)).

Once you revoke, the news has to travel. Section 2517(e) makes an agent or default surrogate who learns of a revocation or of their own disqualification communicate it to a responsible health-care professional as soon as reasonably feasible, and § 2521(d) makes a professional who hears of it document the fact and, where a record exists, request a copy for the medical record.

The Mental-Health Directive and Its One Heavy Clause

16 Del. C. § 2509 lets you create a directive that addresses mental health care only. It may hold an instruction, an agent appointment limited to mental health care, or both, and § 2509(b) lists what it may cover: your general objectives, preferences about professionals, programs and facilities, admission to a mental-health facility and its duration, medications, refusal of a named type of care, and crisis intervention.

Its distinctive feature is § 2509(d). You may direct that while you are experiencing a psychiatric or psychological event named in the directive, you may not revoke it. That one clause changes three things at once. Under § 2509(e) the directive must sit in a record separate from any other advance health-care directive you have created, it needs two adult witnesses rather than one, and both must be physically present in the same location as you, so the audio and audio-visual options of § 2508(e) are off the table. Each witness also attests that to the best of their knowledge you understood the nature and consequences of the direction, including its risks and benefits, and made it voluntarily and without coercion or undue influence.

Without that clause the ordinary rules apply. A mental-health directive that only states preferences follows § 2507 and needs nothing. One that appoints a mental-health agent follows § 2508 and needs one adult witness. Do not read the two-witness rule as Delaware's requirement for every mental-health directive.

Section 2510 keeps the two kinds of appointment from cancelling each other by accident. Naming a mental-health-only agent does not revoke an earlier general appointment, and a later general appointment does not revoke a mental-health-only one. A later general appointment does take over mental-health decisions from an earlier general agent unless the newer document says otherwise.

Which Document Wins: the Later One

Delaware resolves conflicts by recency rather than by ranking one instrument above another, and it says so three times in the same form: § 2507(c) for instructions, § 2515(c) for directives, and § 2510(a) between a mental-health directive and any other. Section 2510 is the deliberate carve-out described above.

Between a directive and a DMOST form the answer is recency again, under the other chapter. 16 Del. C. § 2513A(a) governs your scope of treatment by the latest directive available. Section 2513A(b) requires the practitioner to be told when a later directive conflicts with the form so the form can be modified or voided, and § 2513A(c) requires your last expressed oral or written directives to be followed, with a new DMOST form prepared if needed.

One priority clause is worth knowing separately. Section 2516(f) says that where chapter 25 conflicts with other Delaware law about creating, executing, implementing or revoking an advance health-care directive, chapter 25 prevails. That is what keeps the light § 2507 and § 2508 rules controlling even against a stricter formality found elsewhere.

A DMOST Form Is a Medical Order, Not a Directive

Delaware states the distinction twice, at 16 Del. C. § 2502A(d) and in the definition at § 2503A(5)b. The Delaware Medical Orders for Scope of Treatment form is a standardized, uniquely identifiable document of uniform format or color created or approved by the Department of Health and Social Services. It is voluntary, it is for patients living with serious illness or frailty whose health-care practitioner would not be surprised if they died within the next year, and it must be signed by a health-care practitioner.

Section 2508A obliges practitioners, providers, institutions and emergency-care providers to treat a patient holding a completed form in accordance with its directions. Section 2509A lists what makes the form complete, including the practitioner's signature and the date of that signature, and a statement that a plain-language explanation of the form and the consequences of executing it was provided. Under § 2507A the Delaware Health Information Network maintains an electronic registry that stores executed forms and makes them available to emergency-care providers, providers and institutions.

You keep control of it. Section 2511A(a) lets a patient with decision-making capacity void their own form at any time or ask for different treatment, and § 2511A(b) makes the practitioner honour a more recent oral or written directive from the patient over the form's orders. Only after you lose decision-making capacity does your authorized representative's power to modify or void arise, and § 2511A(c) makes that power conditional: it takes consultation with the practitioner, and the form itself must offer you the choice to switch that power off. Where a representative rather than the patient signs, § 2518A(b) requires a physician to have determined that the patient lacks decision-making capacity.

Nobody Can Look It Up: Delaware Keeps No Directive Registry

Chapters 25, 25A, 25B and 25C were read in full and none of them creates a place to file, deposit or register an advance health-care directive. The only statutory registry in this corner of Delaware law is the DMOST registry at § 2507A, and it stores clinician-signed forms rather than directives.

So getting your document in front of the right people is your job, and two sections make that easier. Section 2521(d) puts a documentation duty on a responsible health-care professional who is told a directive exists, including a duty to request a copy and have it placed in your medical record. Section 2525(a) gives a physical or electronic copy the same effect as the original, and § 2525(b) lets you make a certified physical copy of an electronic directive by affirming under penalty of perjury that the copy is complete and accurate. Hand copies to your agent, your doctors and the hospital you would most likely use, and tell the people who would show up at the emergency room where the original lives.

A Document Signed in Another State

16 Del. C. § 2516(a) takes the most generous of the common approaches. A directive created outside Delaware is valid here if it complies with either the law of the state specified in the directive, or the state where you created it if none is specified, or with chapter 25 itself. Because Delaware's own formalities are so light, that second route alone will validate most out-of-state documents.

Section 2516(b) adds a reliance rule that makes the recognition usable in a hospital corridor: a person may assume without inquiry that a directive is genuine, valid and still in effect, and may implement and rely on it, unless that person has good cause to believe it is invalid or revoked. The DMOST chapter carries its own equivalent at § 2510A for medical orders executed elsewhere.

When a Doctor Will Not Follow It

16 Del. C. § 2521(f) sets five grounds for refusal: the instruction or decision is contrary to an institutional policy expressly based on reasons of conscience that was timely communicated to you or your surrogate; the care is not available to that professional or institution; compliance would require the professional to act contrary to a religious belief or moral conviction where other law permits refusal on that ground; compliance would require care contrary to generally accepted health-care standards; or compliance would violate a court order or other law.

Section 2521(g) then attaches a four-part duty, and one piece of it carries a number. The professional or institution must inform you if possible and your surrogate as soon as reasonably feasible; must immediately make a reasonable effort to transfer you to someone willing to comply; must provide life-sustaining care and comfort care to the extent feasible until transfer where the refusal rested on the conscience-policy or unavailability grounds; and where the refusal rested on the individual-conscience, accepted-standards or unlawfulness grounds, must provide life-sustaining and comfort care until transfer or, if transfer is reasonably believed impossible, for at least 15 days after the refusal.

Penalties Live in Two Chapters and They Are Not the Same

Chapter 25 creates a civil cause of action and names no crime. 16 Del. C. § 2524(a) prohibits five things: intentionally falsifying a directive; intentionally concealing, defacing, obliterating or deleting a directive or a revocation without consent, to frustrate the maker's intent or knowing that is the likely result; intentionally withholding knowledge of a directive or revocation from a responsible professional or institution for the same purpose; coercing or fraudulently inducing someone to create, revoke, or refrain from either; and requiring or prohibiting the creation or revocation of a directive as a condition for providing health care.

The remedy is money. Section 2524(b) gives the individual or the estate a claim for statutory damages of $25,000 or actual damages, whichever is greater. Section 2524(c) raises the figure to $50,000 or actual damages against a health-care professional or institution that intentionally violates § 2521, subject to a narrow first-responder exception in § 2524(d), and § 2524(e) adds reasonable attorneys' fees, court costs and litigation expenses for a prevailing plaintiff.

The DMOST chapter is where the crimes are. Section 2517A(d) makes it a class G felony to intentionally or knowingly conceal, cancel, deface, obliterate or withhold knowledge of a completed DMOST form or its modification or revocation without consent, to falsify or forge one, or to coerce or fraudulently induce its completion. Section 2517A(e) makes it a class A misdemeanor for each act where an organization intentionally or knowingly requires or prohibits completion of a form as a condition of insurance coverage, a public benefits program, or the provision of health care. Section 2517A(b) adds a civil penalty of up to $1,000 per offense against an institution that intentionally fails to follow the chapter. Never read one chapter's penalties onto the other.

What Delaware Does Not Say

Two absences are worth stating outright, because a blank field and a verified absence are different things.

No pregnancy clause. The string pregnan appears zero times across chapters 25, 25A, 25B and 25C as published, and zero times in 84 Del. Laws, c. 467. Nothing in Delaware health-care decisions law suspends a directive, limits an agent or overrides an instruction during a pregnancy.

No presumption against you for signing nothing. Section 2527(d) says the chapter creates no presumption about the intention of someone who has not created a directive. Section 2503(b) protects the other side of the same coin: your right to decide about your own health care while you have capacity is unaffected by whether you create or revoke a directive. And § 2527(c) provides that death caused by withholding or withdrawing health care in accordance with the chapter is neither a suicide nor a homicide, and does not impair a life insurance policy or an annuity, whatever the policy says.

Where This Sits in a Delaware Plan

Money and property run on a different act in a different Title with a different signing rule. A Delaware power of attorney is governed by 12 Del. C. ch. 49A, is not durable unless it says so, and takes a notarial officer plus one unrelated adult witness plus a date. Your health-care documents need none of that, and neither document does the other's job.

If nobody was named and a family is heading toward the Court of Chancery, read Delaware guardianship planning before anyone files. The nine-class ladder at § 2512 answers the medical half without a court in most families, and chapter 25B is what lets a hospital petition when it cannot find a surrogate at all.

For how these documents sit beside a will, a trust and your beneficiary designations, start at Delaware estate planning basics. Everything on this page stops at death: your instruction and your agent's authority both end there, and what happens next is laid out in the Delaware probate guide.

Frequently Asked Questions

Does a Delaware advance directive have to be notarized?

No. The word notary does not appear once in the 30 sections of 16 Del. C. ch. 25, so Delaware offers no notary route and asks for none. A power of attorney for health care needs three things under 16 Del. C. § 2508(d): a record, your signature, and the signature of one adult witness who clears five listed conditions. A health-care instruction under § 2507 carries no signing rule at all. Anyone describing a Delaware two-witness or notarized advance directive is describing the chapter that was deleted on September 30, 2025.

What changed in Delaware on September 30, 2025?

Everything in the chapter. 84 Del. Laws, c. 467 was approved September 30, 2024 and section 12 of the act gave it a one-year runway, so on September 30, 2025 Delaware deleted 16 Del. C. ch. 25 in its entirety and enacted the Uniform Health-Care Decisions Act (2023). Gone are the qualifying-condition gate, the two-witness signing rule and the old definitions. In came a single capacity trigger, a patient right to object to a finding of incapacity, an advance mental health-care directive, and a nine-class default surrogate ladder.

Is my old Delaware advance directive still valid?

Yes, and Delaware wrote three savings rules to say so. Under 16 Del. C. § 2529(a) a directive created before September 30, 2025 is valid if it complies with the current chapter or complied at the time of creation with the law of the state where it was created. Section 2529(b) preserves the effect of anything already done, and § 2529(c) lets a default surrogate who had already assumed authority keep acting. Section 2530 then applies the current chapter to directives created before, on or after that date, and § 2527(e) reads a directive under Delaware law as at the time it is implemented rather than as at the time it was signed.

Who decides for me in Delaware if I never named an agent?

A default surrogate, chosen from nine classes in descending order at 16 Del. C. § 2512(b). The order runs: an adult you identified outside a power of attorney; your spouse or domestic partner; your adult child or parent, who share one class; your cohabitant; your adult sibling; your adult grandchild or grandparent; an adult who routinely helped you with supported decision making during the preceding 6 months; an adult stepchild you actively parented; then an adult who has shown special care and concern and knows your values. A surrogate may act only when you lack capacity and no agent or authorized guardian is appointed or reasonably available.

When does my Delaware health-care agent take over?

On incapacity alone. Under 16 Del. C. § 2518(a) the power commences when you are found under § 2504(b), or by a court, to lack capacity to make a health-care decision. Delaware sets no terminal-condition test and no permanent-unconsciousness test anywhere in chapter 25. Access to your medical information can run on a different clock: § 2518(c) lets the document say that power starts on appointment instead.

Can I object to being found incapable in Delaware?

Yes, and the objection has teeth. Under 16 Del. C. § 2505(c) you may object orally to a responsible health-care professional, in a record, or by another act that clearly indicates objection. Section 2505(d) then requires that you be treated as having capacity unless you withdraw the objection, a court finds you lack capacity, care must be given promptly to avoid imminent loss of life or serious harm, or a qualifying second finding is made by a different clinician. Section 2505(e) shuts off the second-finding route entirely where you are asking for life-sustaining treatment and the finding is being used to withhold or withdraw it.

Does a Delaware advance directive stop working during pregnancy?

No. Delaware has no pregnancy provision. The string pregnan appears zero times across 16 Del. C. ch. 25, ch. 25A, ch. 25B and ch. 25C as published, and zero times in 84 Del. Laws, c. 467, the act that wrote the current chapter. Nothing in Delaware health-care decisions law suspends a directive, limits an agent or overrides an instruction during a pregnancy. Many neighboring states do carry such a clause, so do not import one into a Delaware document from a template.

Is a DMOST form the same as a Delaware advance directive?

No, and Delaware says so twice. 16 Del. C. § 2502A(d) and § 2503A(5)b. both state that the Delaware Medical Orders for Scope of Treatment form is separate from and is not an advance health-care directive. A DMOST form holds portable medical orders, must be signed by a health-care practitioner, is meant for patients living with serious illness or frailty whose practitioner would not be surprised if they died within the next year, and is stored in a statewide electronic registry maintained by the Delaware Health Information Network under § 2507A. Your directive is your own instrument and needs no clinician to create it.

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Information current as of September 10, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Delaware can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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The core documents4 pages
Trusts and avoiding probate4 pages
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