Quickly create your Delaware health care directive

You can name a health care agent through a durable power of attorney for health care. This authorizes your health care agent to make medical decisions on your behalf. However, they can only do so if you become incapacitated and unable to make treatment decisions for yourself.

Your health care agent has broad decision-making powers over your medical treatment. They can make any treatment decisions that you would have been able to make when you had the capacity to do so. Their legal duty is to carry out the terms of your health care directive. But if medical issues pop up that are not covered by your advance directives, your health care agent’s duty is to make the decisions that they believe you would have made under the circumstances. If they do not know what you would have wanted, their duty is to act in your best interest after consulting with medical professionals.

However, a health care agent does not have the power to withhold life-sustaining treatments unless you are permanently unconscious, terminally ill, or otherwise diagnosed as having a condition that could likely cause death within a year.

Remember to keep practical considerations in mind. These would include whether your agent lives nearby, and whether they will be able to reach you promptly. It may be a good idea to name an alternate agent in case your first choice becomes unable or unwilling to take on this responsibility.

In Delaware, advance directives become effective in the event that you become medically incapacitated and unable to give informed consent on your treatment options. Your advance directives will no longer be effective if you regain the capacity to make your own medical decisions.

If there are provisions in your advance directives that instruct the withdrawal of life-sustaining procedures, there are stricter requirements. These provisions only go into effect if you are:

• Experiencing a terminal illness,
• Permanently unconscious; or
• Experiencing “serious illness or frailty.” This is defined as a medical condition that could result in death within the next year, according to a health care professional.

The diagnosis of permanent unconsciousness must be made by a neurologist or neurosurgeon.

A divorce does not revoke the medical directions in your health care directive. But if you named your spouse as a health care agent through a durable power of attorney for health care, the divorce would revoke this designation. The only exception to this would be if you had stated otherwise in your advance directives.

If you have gone through a divorce, it’s wise to update your estate planning documents. You may need to name a new health care agent to replace your former spouse. Further, you might want to add or remove beneficiaries from your will.

Under Delaware law, you can revoke all or part of your advance health care directives as long as you are competent to do so.

You may revoke in the following ways:

• Through a signed writing
• By communicating your intention to revoke to at least two competent people. One of those people must be a health care provider.

If your revocation is not in writing, the witnesses to your revocation must create a signed and dated writing to document this. You should choose witnesses who you trust to create the appropriate record.

When you create new advance health care directives, they revoke any conflicting provisions in the former documents.

Whenever you revoke your advance health care directives or create new ones, make sure to inform the right people of this change. You should give your loved ones, health care providers, and health care agent updated copies.