Medical Power of Attorney in Delaware

Delaware calls it a "power of attorney for health care." It must be in a record, signed by the person, and signed by one adult witness who reasonably believes the act is voluntary and knowing, is not the agent or the agent's spouse, domestic partner or cohabitant, and, if the person lives or receives care in a nursing home or long-term care facility, is not connected to that facility. The witness may be present in person or by real-time audio-video (or audio in some cases). Notarization is not required. Certain people are disqualified from acting as agent, including a nursing home or long-term care facility owner, operator, employee or contractor (unless family) and anyone subject to a protection-from-abuse order or petition by the person.

Delaware has an optional Advance Health-Care Directive form in its Health-Care Decisions Act. Any adult with capacity can make a power of attorney for health care (naming an agent) and give health-care instructions. A power of attorney for health care must be in a record and signed by the person and by one adult witness who is not the agent, not the agent's spouse, domestic partner or cohabitant, and (for nursing home or long-term care residents) not connected to the facility. The witness may be present in person or by real-time audio-video (or audio in some cases). Notarization is not required.

Under Delaware's Health-Care Decisions Act, an adult with capacity may create a "health-care instruction" stating preferences for future care, such as end-of-life treatment, which professionals or facilities to use, who should be consulted, and who should serve as default surrogate or guardian. A health-care professional who is given an instruction must record it in the medical record, and a later conflicting instruction revokes the earlier one to the extent of the conflict. The Act includes an optional Advance Health-Care Directive form that combines instructions with a power of attorney for health care; a separate advance mental health-care directive is also allowed.

Delaware has an optional statutory "Durable Personal Power of Attorney Form" with a notice and an agent's certification (12 Del. C. 49A-301); an agent may not act until signing the certification. A personal power of attorney must be in writing, dated, signed by the principal (or by another person signing the principal's name in the principal's presence at the principal's express direction), and signed in front of a notarial officer and one adult witness; the witness cannot be related to the principal by blood, marriage or adoption, or be entitled to any part of the principal's estate under an existing will, codicil or trust (49A-105). For health care, Delaware's optional "Advance Health-Care Directive" form is in 16 Del. C. 2511. A power of attorney for health care must be in a record, signed by the individual and by one adult witness who is present at signing; the witness cannot be the agent or the agent's spouse, domestic partner or cohabitant, or (in a nursing home or long-term care facility) an owner, operator, employee or contractor of the facility (2508(d)).