You hope you never need a living will. But in the unthinkable case when someone we love becomes incapacitated and needs medical attention, it’s always best to have a plan in place to make the important decisions in his or her life. A living will can provide such a plan. This is a brief summary of living wills laws in Delaware.
Living Wills Laws
Under state law, living wills function a little differently from the wills we normally think of. Instead of bequeathing a person’s property and possessions, a living will is a legally binding document that can state a person’s medical treatment preferences, should they become unable to do so.
Delaware Living Wills Statutes
Living wills statutes in Delaware are highlighted in the chart below.
| Code Section | 16 §2501, et seq. Health Care Decisions |
| Specific Powers, Life-Prolonging Acts | Right to refuse medical or surgical treatment via written declaration instructing any physician to cease or refrain from medical or surgical treatment |
| Legal Requirements for Valid Living Will | (1) Legally adult, competent, of sound mind; (2) written declaration; (3) declarant in terminal condition confirmed in writing by 2 physicians; (4) signed by declarant or another person in declarant's presence and at his express direction; (5) dated; (6) 2 or more adult witnesses who state in writing that they are not prohibited from being a witness; (7) not pregnant |
| Revocation of Living Will | Revocable in whole or in part by individuals who are mentally competent through (1) a signed writing, (2) a communication of intent to revoke made in the presence of two competent persons, one of whom is a health care provider, or (3) a superceding advanced health care directive. Initiation of emergency treatment suspends an advance health-care directive while receiving such emergency treatment. A decree of annulment, divorce, dissolution of marriage or a filing of a petition for divorce revokes a previous designation of a spouse as an agent unless otherwise specified in the decree or in a power of attorney for health care. |
| Validity from State-to-State | Declarations executed in other states are valid if valid in that state |
| If Physician Unwilling to Follow Living Will | - |
| Immunity for Attending Physician | Physicians or nurses acting in reliance on properly executed document are presumed to be acting in good faith and there is no civil or criminal liability or discipline for unprofessional conduct. |
Delaware Living Wills Laws: Related Resources
Trying to plan for the future illness or death of a loved one is difficult. If you would like legal assistance in setting up a living will, you can contact a Delaware estate planning attorney. You can also find visit FindLaw’s living wills section for more articles and resources on this topic, including a sample living will form and a sample living will with designation of a surrogate form.
