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Advance Directive in Delaware: Living Will, Health Care Agent and the One-Witness Rule
Delaware rewrote its advance directive law on September 30, 2025. A power of attorney for health care now needs one qualified adult witness and no notary. Here is how the Uniform Health-Care Decisions Act works.
By naveen · Updated · How we research our guides
What to know
- Delaware's advance health-care directive is a power of attorney for health care, a health-care instruction about your parent's wishes, or both, under 16 Del. C. chapter 25.
- A power of attorney for health care must be signed by your parent and by one adult witness who isn't the agent or the agent's spouse, domestic partner or cohabitant; the statute doesn't list a notary (§ 2508).
- The agent's power begins when your parent is found to lack capacity, and your parent can object to that finding.
- Without an agent, Delaware law sets an order of default surrogates, starting with an adult your parent identified, then a spouse or domestic partner (§ 2512).
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
An advance directive in Delaware is "a power of attorney for health care, health-care instruction, or both." Since September 30, 2025, they're governed by the Uniform Health-Care Decisions Act (2023), 16 Del. C. chapter 25. Under § 2508, a power of attorney for health care "must be in a record, signed by the individual creating the power, and signed by an adult witness" who meets the statute's conditions.
What is an advance directive in Delaware?
In Delaware, an advance directive is a power of attorney for health care, a health-care instruction, or both in one record (16 Del. C. §§ 2502, 2507).
| Document | What it does | Statute |
|---|---|---|
| Power of attorney for health care | Names an agent to make health care decisions if your parent can't | 16 Del. C. § 2508 |
| Health-care instruction | Records your parent's goals, preferences and wishes about health care, including life-sustaining treatment | 16 Del. C. § 2507 |
| Combined directive | Both in one record; the statute's optional form does this | 16 Del. C. §§ 2507(d), 2511 |
The state's aging division explains that "Living Will" is another name for "advance health care directive." A health-care instruction is "a direction, whether or not in a record," about your parent's goals, preferences or wishes for care. A financial power of attorney is separate and doesn't cover health care; see our Delaware power of attorney guide. For the general picture, see power of attorney vs. advance directive.
What changed in 2025?
In 2024 the General Assembly deleted Delaware's earlier health-care decisions chapter and enacted the uniform act in its place (84 Del. Laws c. 467); 85 Del. Laws c. 90 says "This Act takes effect on September 30, 2025." Older documents still count: under § 2529, a directive "created before September 30, 2025, is valid if it complies with this chapter or complied at the time of creation with the law of the state in which it was created."
So a directive your parent signed under the earlier law stays valid if it met that law when signed. The new chapter applies to directives "created before, on, or after September 30, 2025."
How do you sign a Delaware advance directive?
For a power of attorney for health care, your parent signs and one adult witness signs. Under § 2508(d), the witness must reasonably believe your parent is acting voluntarily and knowingly, can't be the agent or "the agent’s spouse, domestic partner, or cohabitant," and must be present when your parent signs or confirms the document reflects their wishes. If your parent lives or receives care in a nursing home or long-term care facility, the witness can't be its owner, operator, employee or contractor.
"Present" can mean in the same room, on a live video call, or, if the witness knows or can confirm who your parent is, on a live audio call. The section doesn't list a notary. The optional form puts it plainly: "You need a witness if you are using this form to name an Agent." The chapter sets no witness rule for health-care instructions on their own.
Who can't serve as the health care agent?
Under § 2508(b), a person is disqualified if a court finds they pose a danger to your parent's well-being, if your parent has a pending protection from abuse petition or an order against them, or if they're subject to a civil or criminal no-contact order. An owner, operator, employee or contractor of a nursing home or long-term care facility where your parent lives or receives care can't serve either, unless they're a family member or your parent's cohabitant.
If your parent names co-agents, "each co-agent may exercise independent authority" unless the document says otherwise. Divorce changes things: unless the directive says otherwise, naming a spouse or domestic partner as agent is revoked once a petition for divorce, annulment or legal separation "has been filed and not dismissed or withdrawn" (§ 2515).
When does the agent start making decisions?
Under § 2518, the agent's power "commences when the individual is found under § 2504(b) of this title or by a court to lack capacity to make a health-care decision." That finding is made by a physician, psychologist, physician associate, advanced practice registered nurse or licensed clinical social worker after examining your parent, and it can't be made by a family member or the agent.
Your parent can object, out loud or in writing, and is then treated as having capacity unless the finding is confirmed by a second professional, a court decides, or there's an emergency. A power of attorney for health care can let the agent see your parent's health information right away. Unless the directive specifically authorizes it, an agent can't consent to your parent's voluntary admission to a mental health facility, or consent to a nursing home stay intended to last more than 100 days if an alternative is reasonably feasible, your parent objects, or your parent isn't terminally ill.
Where do you get a Delaware advance directive form?
The statute prints one. 16 Del. C. § 2511 says "The following form may be used to create an advance health-care directive," and it covers naming an agent, health care instructions, optional special powers, organ donation and a single witness signature. It explains: "You can use this form if you wish to name someone to make health-care decisions for you in case you cannot make decisions for yourself."
The Division of Services for Aging and Adults with Physical Disabilities also posts an Advance Health Care Directive Form. As of October 13, 2026, that form and its web page still describe the earlier law's signing rules, including "two (2) qualified witnesses" who can't be related to your parent. If your parent uses it, an elder law attorney can confirm the signing meets § 2508(d).
What happens if your parent has no health care agent?
A default surrogate decides, chosen from an order of priority set in law. Under § 2512, if your parent lacks capacity and has no agent or guardian reasonably available, a default surrogate can decide, in this order of priority, unless your parent's directive says otherwise:
- an adult your parent identified, other than in a power of attorney, to decide for them;
- a spouse or domestic partner, unless a divorce or separation petition is pending, there's a decree or written separation agreement, or they've deserted your parent for more than a year;
- an adult child or parent;
- a cohabitant;
- an adult sibling;
- an adult grandchild or grandparent;
- an adult who routinely helped your parent with supported decision making in the past six months;
- an adult stepchild your parent actively parented, with an ongoing relationship;
- an adult "who has exhibited special care and concern for the individual and is familiar with the individual’s personal values."
If members of the top class disagree, the provider follows the majority of those who've shared their views. Your parent can also rule someone out as a default surrogate, in a signed record or just by saying so (§ 2514).
How do you revoke a Delaware advance directive?
Your parent can revoke an agent's appointment, a default surrogate designation or an instruction, in whole or in part, "by any act of the individual that clearly indicates that the individual intends to revoke," including "an oral statement to a health-care professional" (§ 2515). That right is limited only if a court finds your parent lacks capacity to revoke, or a lack-of-capacity finding is made and, if your parent objects, confirmed. A later directive that conflicts with an earlier one revokes the earlier one to the extent of the conflict.
What about POLST?
A POLST is a medical order, not an advance directive. Under 16 Del. C. chapter 25A, "The POLST form is separate from and is not an advance health-care directive." It's for patients with serious illness or frailty, is signed by the patient's health-care practitioner, and is kept in an electronic registry. Delaware's form was called DMOST until September 8, 2026; DMOST forms that complied with the law remain valid (§ 2522A). The Department of Health and Social Services page still uses the DMOST name.
Frequently asked questions
Does an advance directive need to be notarized in Delaware?
Under 16 Del. C. § 2508(d), a power of attorney for health care must be signed by your parent and one qualified adult witness; the section doesn't list a notary. The statute's optional form has a witness line and no notary block. A health-care instruction on its own has no witness rule in chapter 25.
Can a family member witness a Delaware advance directive?
Under § 2508(d), the witness can't be the agent or the agent's spouse, domestic partner or cohabitant, and in a nursing home or long-term care facility can't be its owner, operator, employee or contractor. The section doesn't bar other relatives. The state's older form does bar relatives, so check which rules the document follows.
Where can I get a Delaware advance directive form?
The optional Advance Health-Care Directive form is printed in 16 Del. C. § 2511 on the Delaware Code website. It lets your parent name an agent and an alternate, give instructions about life-sustaining treatment, grant optional special powers and record an organ donation choice, with one witness signature.
Who makes medical decisions in Delaware if there's no advance directive?
A default surrogate under § 2512. The order starts with an adult your parent identified, then a spouse or domestic partner, then an adult child or parent, a cohabitant, an adult sibling, an adult grandchild or grandparent, and others who know your parent. A majority of the highest class decides if they disagree.
Is an advance directive from another state valid in Delaware?
Yes, if it complies with the law of the state named in the directive, or if none is named, the state where your parent made it, or with Delaware's chapter 25 (§ 2516). A physical or electronic copy has the same effect as the original under § 2525.
Can my parent change their mind after signing?
Yes. Your parent can revoke all or part of an advance directive by any act that clearly shows the intent, including telling a health-care professional. The limits apply only if a court finds your parent lacks capacity to revoke, or a lack-of-capacity finding is confirmed after an objection.
Getting started
An advance directive only helps if your parent signs it while they can, with a witness who meets Delaware's rules, and if the agent and doctors have a copy. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- 16 Del. C. chapter 25, Uniform Health-Care Decisions Act (2023): definitions (§ 2502), capacity (§§ 2504, 2505), instructions (§ 2507), signing and agents (§§ 2508, 2520), the optional form (§ 2511), default surrogates (§§ 2512 to 2514), revocation (§ 2515), out-of-state directives (§ 2516), agent powers (§ 2518) and older directives (§ 2529).
- Laws of Delaware, volume 85, chapter 90: the September 30, 2025 effective date.
- Delaware Code, Title 16 (PDF): chapter 25A, the Delaware POLST Act.
- Division of Services for Aging and Adults with Physical Disabilities, Advance Directives: the state's older form and guidance.
- Delaware Health Care Commission, DMOST: the medical order program now called POLST.
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