Mutual Wills or Last Will and Testaments for Unmarried Persons living together with Minor Children
Note: This summary is not intended to be an
all-inclusive summary of the law of wills in Delaware but does provide
basic and other information. Handwritten wills or wills where the testator
cannot sign are not included in this discussion.
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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