Revocation of Statutory Advance Health Care Directive
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE DELAWARE CODE
ADVANCE HEALTH CARE DIRECTIVE
(§§ 16-2501 through 16-2518)
An "advance health-care directive" is an individual instruction
or a power of attorney for health care, or both.
An "agent" is an individual designated in a power of attorney for
health care to make a health-care decision for the individual granting
the power.
"Artificial nutrition and hydration" is supplying food and water
through a conduit, such as a tube or intravenous line where the recipient
is not required to chew or swallow voluntarily, including, but not limited
to, nasogastric tubes, gastrostomies, jejunostomies and intravenous infusions.
Artificial nutrition and hydration does not include assisted feeding, such
as spoon or bottle feeding.
"Capacity" is an individual's ability to understand the significant
benefits, risks and alternatives to proposed health care and to make and
communicate a health-care decision.
A "declarant" is a person who executes an advance health care directive.
"Health care" is any care, treatment, service or procedure to maintain,
diagnose or otherwise affect an individual's physical or mental condition.
A "health-care decision" is a decision made by an individual or
the individual's agent, surrogate or guardian regarding the individual's
health care, including:
Selection and discharge of health-care providers and institutions;
Acceptance or refusal of diagnostic tests, surgical procedures, programs
of medication and orders not to resuscitate; and
Directions to provide, withhold or withdraw artificial nutrition and
hydration and all other forms of health care.
An "individual instruction" is an individual's direction concerning
a health-care decision for the individual.
A "life sustaining procedure" is any medical procedure, treatment
or intervention that:
Utilizes mechanical or other artificial means to sustain, restore,
or supplant a spontaneous vital function; and
Is of such a nature as to afford a patient no reasonable expectation
of recovery from a terminal condition or permanent unconsciousness.
"Medically ineffective treatment" is treatment that, to a reasonable
degree of medical certainty, a medical procedure will not:
Prevent or reduce the deterioration of the health of an individual;
or
Prevent the impending death of an individual.
A"power of attorney for health care" means the designation
of an agent to make health-care decisions for the individual granting the
power.
A "qualifying condition" is the existence of one or more of the
following conditions in the patient, certified in writing in the patient's
medical record by the attending physician and by at least one other
physician who, when the condition in question is "permanently unconscious"
shall be a board certified neurologist and/or neurosurgeon:
"Terminal condition" is any disease, illness or condition sustained
by any human being for which there is no reasonable medical expectation
of recovery and which, as a medical probability, will result in the death
of such human being regardless of the use or discontinuance of medical
treatment implemented for the purpose of sustaining life or the life processes.
"Permanently unconscious" or "permanent unconsciousness" is a medical
condition that has existed for at least four weeks and that has been diagnosed
in accordance with currently accepted medical standards and with reasonable
medical certainty as total and irreversible loss of consciousness and capacity
for interaction with the environment. The term includes, without limitation,
a persistent vegetative state or irreversible coma.
A "surrogate" is an adult individual or individuals who has
capacity, is reasonably available, is willing to make health care decisions,
including decisions to initiate, refuse to initiate, continue or discontinue
the use of a life sustaining procedure on behalf of a patient who lacks
capacity, and is identified by the attending physician in accordance with
this chapter as the person or persons who are to make those decisions.
An individual, legally adult, who is mentally competent, has the
right to refuse medical orsurgical treatment if such refusal is not contrary
to existing public health laws.
An adult who is mentally competent may:
Give an individual instruction. The instruction may be limited to take
effect only if a specified condition arises; and/or
Execute a power of attorney for health care, which may authorize the
agent to make any health-care decision the principal could have made while
having capacity.
An advance health-care directive must be:
In writing;
Signed by the declarant or by another person in the declarant's presence
and at the declarant's expressed direction;
Dated;
Signed in the presence of two or more adult witnesses, neither of whom:
Is related to the declarant by blood, marriage or adoption;
Is entitled to any portion of the estate of the declarant under any
will or trust of the declarant or codicil thereto then existing nor, at
the time of the executing of the power of attorney for health care, is
entitled thereto by operation of law then existing;
Has, at the time of the execution of the advance health care directive,
a present or inchoate claim against any portion of the estate of the declarant;
Has a direct financial responsibility for the declarant's medical care;
or
Has a controlling interest in or is an operator or an employee of a
health care institution at which the declarant is a patient or resident.
Each witness to the advance health-care directive must state
in writing that he or she is not prohibited from being a witness.
An advance health-care directive becomes effective only upon a determination
that a declarant lacks capacity, and when the advance health-care directive
is to be applied to the providing, withholding or withdrawal of a life
sustaining procedure, it becomes effective only upon a determination that
the declarant lacks capacity and has a qualifying condition.
An advance health-care directive ceases to be effective upon a determination
that the declarant has recovered capacity.
A determination that an individual lacks or has recovered capacity
that affects an individual instruction or the authority of an agent must
be made by the primary physician or other physician(s) as specified in
a written health-care directive.
A power of attorney for health care may include a provision accommodating
an individual's religious or moral beliefs. That provision may designate
a person other than a physician to certify in a notarized document that
the individual lacks or has recovered capacity.
An agent must make a health-care decision to treat, withdraw or
withhold treatment on behalf of the patient after consultation with the
attending physician or with the person other than a physician designated
by the principal and in accordance with the principal's individual instructions,
if any, and other wishes to the extent known to the agent. If the patient's
instructions or wishes are not known or clearly applicable, the agent's
decision must conform as closely as possible to what the patient would
have done or intended under the circumstances.
Unless related to the principal by blood, marriage or adoption,
an agent may not have a controlling interest in or be an operator or employee
of a residential long term health-care institution at which the principal
is receiving care.
A written advance health-care directive may include the individual's
nomination of a guardian of the person.
A life sustaining procedure may not be withheld or withdrawn from
a patient known to be pregnant, so long as it is probable that the fetus
will develop to be viable outside the uterus with the continued application
of a life sustaining procedure.
An individual who is mentally competent may revoke all or part of
an advance health-care directive:
By a signed writing; or
In any manner that communicates an intent to revoke done in the presence
of two competent persons, 1 of whom is a health care provider.
Any revocation that is not in writing must be memorialized in
writing and signed and dated by both witnesses.
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.
An advance health-care directive that conflicts with an earlier
advance health-care directive revokes the earlier directive to the extent
of the conflict.
An individual is presumed to have capacity to make a health-care
decision and to give or revoke an advance health-care directive.
A copy of an advance health-care directive or revocation of an advance
health-care directive, has the same effect as the original.
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