Delaware: Health Care Power of Attorney Requirements

Delaware replaced its older directive statute with the Uniform Health-Care
Decisions Act (2023), 16 Del. C. chapter 25, effective September 30, 2025.
The power of attorney may stand alone or share a record with health-care
instructions. Section 2511 publishes an optional combined form.

Requirements one by one

Governing law and document

The Act defines a power of attorney for health care as a record in which an
individual appoints an agent (§ 2502(23)). A record may be tangible or electronic,
and the optional form may be used but is not mandatory (§§ 2502(25), 2511).

Who can sign

An adult or emancipated minor with capacity signs (§§ 2502(16), 2508(d)).
Capacity includes recognizing the selected agent and understanding the general
nature of their relationship. Delaware expressly preserves decisionmaking with
appropriate services, technology, supported decision making, or other reasonable
accommodation (§ 2503(a)).

The Act recognizes tangible and electronic signatures but states no directed-
signer route (§§ 2502(27), 2508(d), 2516(c)).

Witnesses or notary

Current law requires one adult witness and no notary. The witness must believe
the appointment is voluntary and knowing and be present for the signature or the
principal's representation that the document reflects the principal's wishes
(§ 2508(d)).

Presence can be physical, real-time audiovisual, or real-time audio if the witness
personally knows or authenticates the principal through accurate answers
(§ 2508(e)). Electronic form and electronic signatures cannot be denied effect
solely because they are electronic (§ 2516(c)-(e)).

Who cannot witness or serve

The witness cannot be the agent or the agent's spouse, domestic partner, or
cohabitant. If the principal resides or receives care in a nursing home or
long-term care facility, the witness also cannot be its owner, operator, employee,
or contractor (§ 2508(d)).

An owner, operator, employee, or contractor of that facility cannot act as agent
unless family, the principal's cohabitant, or the cohabitant's descendant. Court
findings of danger, abuse petitions/orders, and orders restricting contact also
disqualify an agent (§ 2508(b)).

When the agent can act

Authority is springing by default. It starts when a court or a qualified
professional finds the principal lacks capacity and ends upon restored capacity or
the principal's objection (§ 2518(a)). Section 2504 requires a contemporaneous
examination and a signed record by a trained physician, psychologist, physician
associate, APRN, licensed clinical social worker, or a narrow emergency substitute.

If the principal objects, the principal is generally treated as having capacity
unless a court rules otherwise, an emergency applies, or an independent second
finding confirms incapacity under § 2505. The document may make only the agent's
health-information access immediate (§ 2518(c)).

Powers and limits

The agent follows the directive and reasonably ascertainable goals, preferences,
and wishes; otherwise the agent uses best interest (§ 2517). Health-care decisions
include choosing institutions, tests, surgery, medication, artificial nutrition,
hydration, ventilation, and other care (§ 2502(12)).

Special limits matter. Voluntary mental-health-facility admission requires express
written authorization and lasts no longer than 72 hours or the shorter period in
the directive. Nursing-home placement intended to exceed 100 days has additional
restrictions unless expressly authorized (§ 2518(e)-(g)). Section 2519 also
protects established artificial nutrition, hydration, or ventilation used for a
long-term disability unless an enumerated condition is met.

How to revoke

While the principal has capacity to revoke, any act clearly indicating intent
works, including an oral statement to a health-care professional (§ 2515(a)-(b)).
A later conflicting directive revokes the earlier one to the extent of conflict.

Unless the directive says otherwise, a spouse or domestic-partner appointment is
revoked by filing or entry of specified relationship proceedings, an agreed
recorded separation, or desertion for more than one year (§ 2515(c)-(d)).

Out-of-state directives

A directive created outside Delaware is valid if it complies with the law of the
state named in the directive—or, if none, the state where created—or with Delaware
chapter 25 (§ 2516(a)).

What trips people up

• The old two-witness rule is obsolete. Current § 2508 requires one adult
  witness after the 2025 effective date.
• Remote witnessing is expressly allowed. Delaware permits real-time video
  and, with identity safeguards, audio-only presence (§ 2508(e)).
• Immediate authority is narrow. The document may make health-information
  access immediate; substantive health-care authority remains tied to incapacity
  under § 2518(a), (c).

Common questions

Do I need a notary?
No. Current law requires one qualified adult witness, not notarization (§ 2508).

Can the witness participate remotely?
Yes, through qualifying real-time audiovisual or authenticated audio communication
(§ 2508(e)).

Can my agent admit me to a mental-health facility?
Only if the directive expressly authorizes it, and then for no more than 72 hours
or the shorter stated period (§ 2518(e)).

Will an out-of-state directive work?
Yes, if it satisfies the law named in it, the law where created if none is named,
or Delaware's chapter (§ 2516(a)).

Statutes and sources

• 16 Del. C. §§ 2501-2508 — Act, definitions, capacity, capacity findings,
  and execution.
  https://delcode.delaware.gov/title16/c025/index.html
  (accessed 2026-07-16)
• 16 Del. C. § 2511 — optional combined form.
  https://delcode.delaware.gov/title16/c025/index.html
  (accessed 2026-07-16)
• 16 Del. C. §§ 2515-2516 — revocation, electronic effect, and out-of-state
  validity.
  https://delcode.delaware.gov/title16/c025/index.html
  (accessed 2026-07-16)
• 16 Del. C. §§ 2517-2519 — duties, activation, powers, and limits.
  https://delcode.delaware.gov/title16/c025/index.html
  (accessed 2026-07-16)