Delaware Q and A

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice.  The answers were accurate when written in December 2006.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes.  Delaware’s Health Care Decisions statute allows you to: (1) appoint an agent to make health care decisions for you in the event that you become unable to make those decisions yourself (called “executing a power of attorney”); and/or (2) create an “individual instruction” in which you specify how you would like your health care to proceed.  The statute covers all types of health care, including mental health care.  There is no single mandatory form.  However, a suggested form is available here.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

Yes.  You may use page 9 of the suggested form (“Other Medical Instructions”) to state any directions or limitations on your mental health treatment for any future time when you may be unable to give those instructions.  If you do not wish to make choices about life sustaining treatment at the same time, you may leave the sections about those choices blank.

3.  Does anyone have to approve my advance instructions at the time I make them?

No.  However, your living will must be signed by two adult witnesses.  The witnesses may not be relatives, beneficiaries of your estate or employees of your health care provider.  If you have appointed an agent, your agent cannot also act as a witness.  Your witnesses must not be people financially responsible for your health care.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?

Yes.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes, subject to the exceptions discussed under question 9 below.  In general, if you are determined to be incompetent, your agent may make decisions about any health care issue that you could decide on if you were competent, including treatment refusals.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?   

Your agent must exercise substituted judgment to the extent that he or she can do so, based on your advance instructions and/or on your preferences as known by the agent. If it is not possible to make a decision in that way, your agent must make the decision in your best interests. Your agent is obliged to consult with your attending physician when making decisions on your behalf.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

No.  The Delaware statute allows you to do one, the other, or both.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.  All that is required is that your primary (attending) physician considers that you are unable to make your own treatment choices.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Yes.  The statute says that a provider could decline to follow your PAD if what is being requested is “medically ineffective” or otherwise “contrary to generally accepted health care standards”.  Please note also that Delaware’s involuntary treatment laws still apply if you have created a PAD: this means that if you were considered a danger to yourself or others, your PAD might not be followed.

10.  How long does my PAD remain valid?

Your medical power of attorney is valid as long as you do not revoke it.  You may revoke it at any time by means of a signed  written note or by telling your health care provider in the presence of one other competent witness.  It is a good idea to review and update your documents regularly.