DELAWARE HEALTHCARE POWER OF ATTORNEY
(Advance Health-Care Directive & HIPAA Authorization)
[// GUIDANCE: This template is drafted to comply with 16 Del. C. § 2501 et seq. and current best practices for Delaware advance health-care directives. Customize bracketed items, delete GUIDANCE boxes before final execution, and confirm final form with local counsel.]
TABLE OF CONTENTS
I. Document Header
II. Definitions
III. Operative Provisions
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block
I. DOCUMENT HEADER
1.1 Title. Delaware Health-Care Power of Attorney and Advance Health-Care Directive (the “Agreement”).
1.2 Parties.
a. “[PRINCIPAL NAME],” residing at [ADDRESS] (“Principal”); and
b. “[AGENT NAME],” residing at [ADDRESS] (“Agent”).
1.3 Effective Date. This Agreement becomes effective (i) immediately upon execution OR (ii) upon the Principal’s attending physician’s written determination that the Principal lacks capacity to make health-care decisions, whichever is selected below:
☐ Immediately upon execution ☐ Upon incapacity
1.4 Jurisdiction & Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, including Title 16, Chapter 25 of the Delaware Code.
1.5 Recitals.
WHEREAS, Principal desires to ensure that health-care decisions are made in accordance with Principal’s wishes if Principal becomes unable to make or communicate such decisions personally; and
WHEREAS, Principal desires to appoint an Agent to make health-care decisions on Principal’s behalf, to provide end-of-life instructions, and to authorize disclosure of health information under HIPAA;
NOW, THEREFORE, in consideration of the mutual promises herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows.
II. DEFINITIONS
For purposes of this Agreement, capitalized terms have the meanings set forth below:
“Advance Health-Care Directive” means a power of attorney for health-care decisions executed pursuant to 16 Del. C. § 2501 et seq.
“Agent” means the individual appointed by Principal under Section III.1 to make health-care decisions on Principal’s behalf.
“Good Faith” means honesty in fact in the conduct of the transaction concerned.
“Health-Care Decision” has the meaning set forth in 16 Del. C. § 2501(10).
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, and its implementing regulations at 45 C.F.R. Parts 160 and 164.
“Incapacity” means the inability to understand and appreciate the nature and consequences of a health-care decision, as certified in writing by the attending physician.
“Principal” means the individual executing this Agreement to authorize an Agent for health-care decisions.
III. OPERATIVE PROVISIONS
3.1 Appointment of Agent. Principal hereby appoints Agent, with full power of substitution, to make any and all Health-Care Decisions on behalf of Principal consistent with this Agreement and Delaware law.
3.2 Alternate Agent(s). If the Agent is unwilling, unable, or unavailable to act, the following individuals shall serve successively as Alternate Agent(s):
a. First Alternate: [ALTERNATE 1 NAME & ADDRESS]
b. Second Alternate: [ALTERNATE 2 NAME & ADDRESS]
3.3 Scope of Authority. Subject to Sections V and VI, Agent is authorized to:
a. Consent to, refuse, or withdraw medical or surgical procedures, nutrition, hydration, and medication;
b. Access medical records and communicate with health-care providers;
c. Make decisions regarding facility placement, home health, hospice, and palliative care;
d. Authorize autopsy, organ donation, and disposition of remains, unless Principal has provided contrary written instructions.
3.4 End-of-Life Instructions. Principal’s specific directives regarding end-of-life care are set forth in Section V.1 and shall control over any inconsistent instruction of the Agent.
3.5 HIPAA Authorization. Pursuant to 45 C.F.R. § 164.502(g)(2) and § 164.508, Principal authorizes Agent to obtain, use, and disclose all protected health information (“PHI”) necessary to carry out the purposes of this Agreement. This authorization is effective immediately and survives Principal’s death to the extent necessary to carry out post-mortem decisions authorized herein.
3.6 Consideration. The mutual promises herein constitute sufficient consideration. No monetary payment is required or contemplated.
IV. REPRESENTATIONS & WARRANTIES
4.1 Principal’s Capacity. Principal represents that Principal is at least 18 years of age, is of sound mind, and is executing this Agreement voluntarily.
4.2 Agent’s Qualifications. Agent represents that Agent (i) is at least 18 years of age, (ii) is not currently the Principal’s treating health-care provider or an employee thereof, except as permitted by 16 Del. C. § 2503(e), and (iii) accepts the appointment.
4.3 Accuracy of Information. Each party warrants that all information provided herein is accurate and complete.
4.4 Survival. The representations and warranties in this Article IV survive the execution and remain in effect for the term of this Agreement.
V. COVENANTS & RESTRICTIONS
5.1 End-of-Life Provisions.
a. Life-Prolonging Treatment. Principal directs that if Principal is (i) permanently unconscious, (ii) suffering from an incurable and irreversible condition that will result in death within a relatively short time, or (iii) suffering from advanced dementia with no reasonable expectation of recovery, then:
☐ Life-prolonging treatment SHALL be withheld or withdrawn.
☐ Life-prolonging treatment SHALL be provided.
[// GUIDANCE: Select or draft additional detail as needed.]
b. Artificial Nutrition & Hydration.
☐ WITHHOLD ☐ PROVIDE ☐ AGENT DECIDES
c. Palliative Care. Principal directs provision of pain relief even if it hastens death.
5.2 Organ Donation.
☐ No donation
☐ Any and all organs and tissues for transplant, therapy, research, or education
☐ Specific limitations: [DETAILS]
5.3 Agent’s Duties. Agent shall:
a. Act in Good Faith and in accordance with Principal’s known wishes;
b. Consult with health-care providers and keep records of decisions;
c. Avoid conflicts of interest;
d. Provide information reasonably requested by interested parties under law.
5.4 Limitations on Agent. Agent may not:
a. Override explicit written instructions of Principal;
b. Engage in willful misconduct or gross negligence;
c. Receive compensation beyond reimbursement of reasonable expenses, unless expressly authorized in writing by Principal.
5.5 Notice Obligations. Agent shall notify alternate agents and immediate family of any material decision within a reasonable time.
5.6 Term; Revocation. This Agreement remains in effect until revoked pursuant to Section VI.2 or upon Principal’s death except for post-mortem authorizations expressly surviving death.
VI. DEFAULT & REMEDIES
6.1 Events of Default. For purposes of this Agreement, “Default” occurs if:
a. Agent resigns, dies, or becomes incapacitated without a qualified Alternate Agent available;
b. A court of competent jurisdiction removes Agent for cause;
c. Agent engages in willful misconduct, gross negligence, or breaches fiduciary duties.
6.2 Revocation by Principal. Principal may revoke this Agreement in whole or in part by:
a. A signed, dated writing;
b. Physical cancellation or destruction of the original instrument; or
c. Oral statement in the presence of at least two adult witnesses, subsequently documented in writing.
6.3 Remedies. Upon Default, any interested person may petition the Delaware Court of Chancery or appropriate Probate Court for (i) removal of Agent, (ii) appointment of a guardian, or (iii) injunctive or declaratory relief to enforce or invalidate this Agreement.
6.4 Attorneys’ Fees. The prevailing party in any action to enforce or interpret this Agreement shall be entitled to reasonable attorneys’ fees and costs.
VII. RISK ALLOCATION
7.1 Indemnification of Agent. Principal agrees to indemnify and hold harmless Agent (and any Alternate Agent acting hereunder) from and against any liability, loss, or expense, including reasonable attorneys’ fees, arising from any act or omission performed in Good Faith under this Agreement, except for willful misconduct or gross negligence.
7.2 Limitation of Liability. In no event shall Agent be liable for monetary damages in excess of losses directly caused by Agent’s willful misconduct or gross negligence.
7.3 Insurance. [OPTIONAL] Principal or Principal’s estate may procure liability insurance covering the Agent’s acts hereunder.
7.4 Force Majeure. Agent shall not be liable for failure or delay in performance due to events beyond Agent’s reasonable control, including but not limited to natural disasters, governmental actions, or widespread communication failures.
VIII. DISPUTE RESOLUTION
8.1 Governing Law. Delaware law governs all matters arising under or relating to this Agreement.
8.2 Forum Selection. Exclusive jurisdiction and venue shall lie in the state probate court (or, where applicable, the Court of Chancery) sitting in the county of the Principal’s domicile.
8.3 Arbitration. Not available; dispute resolution shall proceed exclusively in the designated court.
8.4 Jury Waiver. Not applicable.
8.5 Injunctive Relief. Nothing herein limits a party’s right to seek injunctive or declaratory relief to effectuate this healthcare directive.
IX. GENERAL PROVISIONS
9.1 Amendments & Waivers. Any amendment must be in a writing signed and dated by Principal. No waiver of any provision is effective unless in writing.
9.2 Assignment & Delegation. Agent may not delegate authority except to an Alternate Agent expressly designated herein.
9.3 Successors & Assigns. This Agreement is binding upon Principal, Agent, Alternate Agents, and Principal’s heirs, executors, administrators, and legal representatives.
9.4 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force and effect and shall be construed to fulfill Principal’s intent.
9.5 Integration/Merger. This document constitutes the entire agreement regarding the subject matter and supersedes any prior healthcare power of attorney executed by Principal.
9.6 Counterparts & Electronic Signatures. This Agreement may be executed in counterparts, each of which is deemed an original. Signatures delivered via electronic means shall be deemed original.
9.7 Copies. Photocopies or electronically scanned copies have the same force and effect as the original.
X. EXECUTION BLOCK
[// GUIDANCE: Delaware requires EITHER (a) acknowledgment before a notary public OR (b) signature of the Principal in the presence of two adult witnesses who meet statutory qualifications. Complete ONE of the following subsections.]
10.1 Execution with Witnesses
IN WITNESS WHEREOF, Principal has executed this Delaware Health-Care Power of Attorney on the date set forth below.
Principal: _____ Date: __
[PRINT NAME]
We declare that the Principal is personally known to us, appeared to be of sound mind, and signed or acknowledged the above instrument in our presence. We are not disqualified from serving as witnesses under 16 Del. C. § 2503.
Witness #1: ____ Date: __
Name & Address: ________
Witness #2: ____ Date: __
Name & Address: ________
10.2 Acknowledgment Before Notary Public
State of Delaware )
County of ____ ) ss.:
On this ___ day of ____, 20__, before me, the undersigned Notary Public, personally appeared [PRINCIPAL NAME], known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that he/she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
My Commission Expires: ____
10.3 Agent Acceptance
The undersigned hereby accepts designation as Agent (and, if applicable, Alternate Agent) under this Agreement and acknowledges the responsibilities and duties imposed thereby.
Agent: ____ Date: ___
[PRINT NAME]
First Alternate Agent (if any): _________
Second Alternate Agent (if any): _______
[// GUIDANCE: Retain originals in a readily accessible location, provide copies to Agent(s), primary physician, and relevant health-care facilities. Consider recording notice of this instrument with your medical records portal.]