“Living Will” is another name for “advance health care directive”. Throughout this section of the site, the term “advance health care directive” (or simply “advance directive”) is used, because that is the name used in the Delaware law related to this subject.

An advance directive is established by completing an Advance Health Care Directive Form. An advance directive enables you to:

Express an intention to donate bodily organs and/or tissue following your death.
Part III of the form is optional. It allows you, if you wish, to designate anatomical gifts to take effect upon your death.

Give instructions about your own health care.
Part I of the advance directive form lets you give specific instructions about health care decisions. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive if you have a terminal medical condition or if you become permanently unconscious, including the provision, withholding, or withdrawl of artificial nutrition, hydration, cardiopulmonary resuscitation, and mechanical resuscitation. Medically appropriate care necessary to ensure pain relief will be provided. Space is also available for you to include any additional health care instructions.

Name an agent to make health care decisions for you if you become incapable of making your own decisions.
Part II of the form allows you name another individual as an agent to make health care decisions for you if you can no longer make your own decisions. You may also name an alternate agent. This section of the form is called a Power of Attorney for Health Care. For more details, see What is a power of attorney for health care?

Delaware’s Advance Health Care Directive Form allows you to name another individual as an “agent” to make health care decisions for you if you become incapable of making your own decisions.  It also enables you to name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. This part of the form is a Power of Attorney for Health Care.

An agent may not be an operator or employee of a residential long-term health care facility at which you are receiving care, unless that person is related to you.

An agent’s authority becomes effective if your attending physician determines that you lack the capacity to make your own health care decisions.

The agent’s obligation is to make health care decisions for you in accordance with the instructions you have given in your advance directive and any other wishes, to the extent that they are known. To the extent that wishes are unknown, health care decisions made by an agent are to conform as closely as possible with what that agent determines you would have done or intended under the circumstances.  In these situations, the agent will take into account what the he or she determines to be in your best interest, and will consider your personal values to the extent that they are known by the agent.

If you are not in a terminal condition or in a permanently unconscious state, your agent may make all health care decisions for you except for decisions to provide, withhold or withdraw a life sustaining procedure. Unless you limit the agent’s authority, he or she  may consent or refuse any care treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition (unless it is a life-sustaining procedure or otherwise required by law). An agent can also select or discharge health care providers and health care institutions.

If you are in a terminal condition or in a permanently unconscious state, your agent may make all health care decisions for you, including consent for or refusal of life-sustaining procedures such as cardiopulmonary resuscitation. He or she can also direct the providing, withholding or withdrawing of artificial nutrition, hydration, and all other forms of health care.

Power of Attorney for Health Care vs. Durable Power of Attorney

In Delaware, a Power of Attorney for Health Care is different than a Durable Power of Attorney.
A Power of Attorney for Health Care relates to health care decisions, while a Durable Power of Attorney relates to financial matters.

To establish a  Power of Attorney for Health Care, fill out a Delaware Advance Directive Form.
To establish a Durable Power of Attorney, fill out a Delaware Durable Power of Attorney Form.

Completing an Advance Health Care Directive form is strictly voluntary.

If you have not given advance instructions for your health care, or have not named an agent in a health care power of attorney, and you become unable to make your own decisions, a surrogate will be asked to make those decisions for you.

The persons listed below would be asked to assume the role of surrogate in the following order of priority:

1. Spouse
2. Adult child
3. Parent
4. Adult brother or sister
5. Adult grandchild
6. Adult niece or nephew
7. Adult aunt or uncle

Under specific circumstances, a close friend may also act in the role of surrogate.

For more information, see  Delaware Code Title 16 Subsection 2507 (Surrogates).

Two people must witness the signing of your advance directive form. A witness cannot be anyone who:

• Is related to you by blood, marriage, or adoption
• Is entitled to any portion of your estate
• Has a claim against any portion of your estate
• Has a direct financial responsibility for your medical care
• Has a controlling interest or is an employee of a residential facility in which you reside

If you are a resident of a long term residential health care facility, one of the witnesses must be designated as a patient advocate or ombudsperson by the Department of Health and Social Services.

For more information about witnessing the signing of an advance directive, see Delaware Code Title 16 Subsection 2503 and Subsection 2511.

You should retain your original completed and signed Advance Health Care Directive and give a copy of the form to your physician and to any other health care providers that you have. You should also give a copy the person that you have named as your health care agent. It would be a good idea talk to that person and make sure that he or she understands your wishes and is willing to take responsibility for ensuring that your wishes are honored. In addition, you may want to give copies to other family members and close friends.

You have the right to revoke your advance health care directive or replace it at any time.

Yes, Delaware Medical Orders for Scope of Treatment (DMOST) are different than advance directives (also known as living wills), although both address a person’s preference for end-of-life care. 

Delaware Medical Orders for Scope of Treatment are end-of-life directives developed by medical professionals in conjunction with their patients (or their representatives). They do not replace advance directives but are used in conjunction with them when needed. A DMOST form is used only when a patient is expected to live for less than one year. It addresses a patient’s specific medical condition and contains medical orders that reflect the patient’s treatment preferences. An advance directive, on the other hand, is recommended for all adults to express their preferences to treat future conditions.

• Information about Supported Decision-Making in Delaware
• Delaware’s Supported Decision-Making Agreement Form

The Delaware law related to advance health care directives is available online. See Delaware Code Title 16 Chapter 25.

If you have questions about advance directives, if you need more information, or if you want a copy of the Advance Health Care Directive form, contact the Delaware Aging and Disability Resource Center (ADRC).

Please remember that completing an Advance Health Care Directive involves making personal choices. If you have questions or concerns about what decisions might be best for you, you might want to consider discussing them with family members, close friends, an attorney, your doctor, and/or a member of the clergy.