Key Benefits of Delaware’s New Uniform Health-Care Decisions Act

This is the next installment in our series on Delaware’s new Uniform Health-Care Decisions Act, which was signed into law on September 30, 2024 and goes into effect in one year on September 20, 2025. Delaware is the first State to fully enact the Uniform Act (and made some Delaware-specific additions), and other states have legislation pending. The new Act completely replaces our existing Act of the same name. The new Act has a new Optional Form that completely replaces our old form.

The Act’s intricate limitations and processes will require significant training of and implementation by all involved in the health care community – individuals, hospitals, care facilities, attorneys, and families. As stakeholders roll up their sleeves to study, understand, train their staff on, and otherwise implement the Act, amendment and/or regulations may become appropriate as the one-year effective date approaches. I will be presenting on the Act this December to attorneys and financial professionals and will continue the conversation up to and through the effective date.

With any new and completely replacing legislation, there is

               To be sure, the Act is an improvement to existing law in many ways, generated by feedback since 1993 from the national health care community culminating in the magnum opus of the Uniform Law Commission’s promulgation of the Uniform Act in 2023. Chief benefits are ease of creation and documenting preferences and goals (rather than inapplicable treatments) in a plain language form.

After close study of the new Delaware Act, following are some of the key benefits:

 To increase the creation of health-care directives, it simplifies signing and witness requirements and allows electronic signing and remote witnessing in certain circumstances.

 It authorizes a new kind of health-care directive, an Advance Directive for Mental Health-Care, which is a growing trend in the United States and includes a Ulysses clause that allows a principal to require that certain instructions be carried out later even if they object.

 It clarifies when agents may act and outlines their powers in ways intended to clear up possible ambiguities in the former Act.

 It states certain powers that must be expressly stated in the Health-Care Power of Attorney or else such powers do not exist. These powers relate to the highly important topics of: mental health facility admission, nursing home placement, obtaining and sharing health care information, and giving an agent flexibility in following instructions. These limitations are not necessarily a good thing as currently drafted. But many will call these limitations a benefit and so they are included as such here.

 It modernizes the definition of capacity to require what is called a “functional standard,” meaning it recognizes a person may have capacity for this but not for that. The capacity needed to appoint an agent is a lower standard than the capacity to approve a complex medical treatment.

 It modernizes approaches to capacity determinations in several ways. It expands the list of who can assess and find a lack of capacity to a long list that goes past a physician. It outlines a process for a person to object if he disagrees with a finding of his lack of capacity, and a process to overcome that objection. It is a series of if-then statements. While there is much room for improvement, it is true that a clearly defined process has value.

 It updates default surrogate provisions to mirror more family structures. These come into play when a person loses capacity and has not designated an agent beforehand. The law provides a default list of classes of surrogates, in descending order of priority. The new Act expands that list to include cohabitants and domestic partners, for example.

 It provides a process for decision-making when default surrogates do not agree.

 It includes a new Optional Form in plain language designed to make it easier for laypersons to appoint agents and share their preferences and goals.

 It answers a growing call from the medical community for the principal to express their preferences about how they want to live, rather than give specific treatment directions that might or might not correspond to their ailment. It is more helpful to the decisionmaker faced with a medical decision on someone else’s behalf to know the person’s goals and preferences, and the priority of those goals and preferences, about how that person wants to live. The Optional Form therefore includes questions to elicit and document this information.

 For Advance Mental Health-Care Directives, it establishes a process – similar to 1990s law enacted to promote the use of health-care directives – for mental health facilities to ask patients if they have a Mental Health-Care Directive and to prompt them to review or create one, to make resources available to patients about mental health directives, and even to assist in preparing the Mental Health-Care Directive in limited circumstances authorized by the Act.

For a good summary of the Uniform Act (on which Delaware’s full enactment was based), see: The New Uniform Health Care Decisions Act: An Overview

https://www.americanbar.org/groups/law_aging/publications/bifocal/vol45/vol45issue1/new-health-care-decisions-act By Nina A. Kohn Bifocal Volume 45, Issue 1, September 2023, American Bar Association