Default Health-Care Surrogate Priority in Delaware

At a glance

Requirements one by one

When the default route opens

Under § 2512(a), an adult or emancipated minor must lack capacity to make a health-care decision, and no appointed health-care agent or authorized guardian may be reasonably available. Section 2504 presumes capacity and specifies a documented, contemporaneous professional finding or court finding to overcome that presumption.

Care or setting covered

“Health care” includes physical and mental care; “health-care decision” includes provider choice, diagnostic tests, surgery, medication, artificial nutrition or hydration and mechanical ventilation (§ 2502(11)–(12)). The default-surrogate section is not confined to a particular facility.

Guardian or appointed agent

The default ladder yields to an appointed agent or authorized guardian who can act (§ 2512(a)). An agent's health-care decision prevails over a guardian's unless a court orders otherwise (§ 2522(b)).

Family and other eligible people

Section 2512(b) first permits an adult previously identified by the patient outside a health-care power of attorney. It then ranks spouse or domestic partner, subject to separation and desertion exclusions; adult child or parent in the same class; cohabitant; adult sibling; adult grandchild or grandparent; an adult who routinely assisted with supported decisions in the preceding six months; a qualifying actively parented adult stepchild; and an adult who has shown special care and knows the person's values. A cohabitant must satisfy the one-year living-together definition in § 2502(5).

Decision within one class

Under § 2513(b), the responsible professional follows the majority of the highest-priority class members who communicated views and whom the professional reasonably believes are fulfilling their duties. On an even division, the professional seeks views of reasonably available members who have not spoken. If the tie remains, § 2513(d) sends the decision to other Delaware law rather than passing it to a lower class.

Who is available and eligible

“Reasonably available” means reachable without undue effort and able and willing to act in time for the care need and duties (§ 2502(24)). A provider may ask for a declaration under penalty of perjury and may recognize the next class if the acting surrogate cannot perform statutory duties timely (§ 2512(c)–(d)). Under § 2514, Delaware allows patient disqualification even without advance-directive capacity and excludes specified abusive, conflicted, or uncooperative candidates, including some nursing-home personnel.

Decisions limited or excluded

The surrogate follows known or reasonably ascertainable wishes and otherwise decides by best interest (§ 2517(b)–(d)). Mental-health-facility voluntary admission requires express written advance-directive authority and cannot exceed 72 hours; a nursing-home stay over 100 days faces additional conditions (§ 2518(e)–(g)). For a person long reliant on artificial nutrition, hydration or ventilation without objection, § 2519(a) limits withdrawal unless a listed exception applies. A default surrogate also cannot make a decision that guardian law bars or requires special court authorization for (§ 2519(b)).

No surrogate or disputed authority

A surrogate decision normally needs no judicial approval (§ 2512(e)). If a class remains evenly split after outreach, the decision follows other Delaware law (§ 2513(d)); § 2512(d) separately permits moving down the ladder when an acting surrogate does not timely perform duties.

What trips people up

A parent does not sit below an adult child in Delaware's order; both are in § 2512(b)(3). The spouse or domestic partner class also has specific pending-divorce, separation and desertion exclusions (§ 2512(b)(2)).

A 2026 amendment changed the professional title in the § 2504 capacity-finding list from physician assistant to physician associate. The act was effective immediately on May 12, 2026, but its implementation occurs by the earlier of May 12, 2027 or approval of enabling regulations by the medical board (85 Del. Laws ch. 253, § 23). The code displays the amended term; the implementation condition should be checked for a particular finding.

Common questions

Can a friend serve?

A friend may qualify as the previously identified adult or, later in the list, as an adult who has shown special care and knows the person's values (§ 2512(b)(1), (9)).

Does a same-class tie let the next relative decide?

No automatic pass-down appears in the tie rule. The clinician first contacts other reasonably available members of that class; a continuing tie is resolved under other Delaware law (§ 2513(c)–(d)).

Statutes and sources

• Del. Code Ann. tit. 16, §§ 2502, 2504, 2512–2514, 2517–2519 and 2522 — current official statute sections linked and quoted above, accessed 2026-10-08.
• 85 Del. Laws ch. 253, § 23 — official 2026 implementation clause: https://legis.delaware.gov/SessionLaws?volume=85&chapter=253 (accessed 2026-10-08).