Delaware Living Will Requirements
Based on Delaware Code Title 16, Chapter 25, §2501-2530 (Health-Care Decisions / Uniform Health-Care Decisions Act)
Quick Summary
- Document type: Advance Health-Care Directive
- 2 witnesses required
- Notarization not required
- Ombudsman witness required if signed in a care facility
Witness Requirements
Delaware requires 2 witnesses who are present when you sign your advance health-care directive. Witnesses have the following restrictions:
Witness restrictions:
- A witness cannot be related to the declarant by blood, marriage, or adoption
- A witness cannot be entitled to any portion of the declarant's estate by will or by operation of law
- A witness cannot have a claim against the declarant's estate
- A witness cannot be directly financially responsible for the declarant's medical care
- A witness cannot be an employee of, or have a controlling interest in, a health care facility in which the declarant resides
- If the declarant is a resident of a long-term care facility, one witness must be a patient advocate or ombudsman designated by the Department of Health and Social Services
When Your Living Will Takes Effect
Your Delaware living will becomes effective when the following conditions are met:
Terminal Illness
A terminal condition is an incurable condition caused by injury, disease, or illness which, to a reasonable degree of medical certainty, makes death imminent and from which, despite the application of life-sustaining procedures, there can be no recovery.
Persistent Vegetative State
Permanent unconsciousness is a medical condition that has been diagnosed in accordance with currently accepted medical standards and that has lasted at least four weeks, 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.
Irreversible Condition
An irreversible condition is an incurable condition for which there is no reasonable prospect of cure or recovery, where life-sustaining treatment serves only to prolong the process of dying.
Important Notes for Delaware
- Delaware follows the Uniform Health-Care Decisions Act (Title 16, Chapter 25, §2501-2530)
- A new Delaware Uniform Health-Care Decisions Act (DUHCDA) takes effect September 30, 2025, replacing the prior law with significant changes including expanded agent eligibility and new execution methods
- Under the current law (before Sept. 30, 2025): two witnesses are required; notarization is optional but not a substitute for witnesses
- Under the new law (effective Sept. 30, 2025): only one adult witness is required for standard advance health-care directives; the witness must reasonably believe the act is voluntary and knowing
- Under the new law, the witness cannot be the appointed agent, the agent's spouse, domestic partner, or cohabitant
- If the declarant is a resident of a long-term care facility, one witness must be a patient advocate or ombudsman designated by the Division of Services for Aging and Adults with Physical Disabilities or the Public Guardian
- A qualifying condition must be certified in writing in the patient's medical record by the attending physician and by at least one other physician; for permanent unconsciousness, the second physician must be a board-certified neurologist or neurosurgeon
- Prior advance directives executed under the old law remain valid under the new law
- A declaration may be revoked at any time by the declarant, without regard to mental state or competency
How to Revoke
You can revoke your living will at any time, regardless of your mental state, by:
- Physically destroying the document
- Creating a written revocation
- Verbally expressing your intent to revoke (in the presence of a witness)
Important: This tool provides a template for creating a living will based on your state's general requirements. It is not legal advice and does not replace consultation with a qualified attorney. For complex medical situations, blended families, or significant assets, we recommend having an attorney review your document.