Revocability of Powers of Attorney under Delaware Law
Delaware statutes distinguish between a financial power of attorney, called a Durable Personal Power of Attorney, governed for non-commercial purposes by 12 Del. C. § 49A, and a health-care power of attorney (including an advance health-care directive for purposes of this article), governed by 16 Del. C. Chapter 25.
A key difference between financial and health-care powers of attorney is how to revoke them.
Overview
Under Delaware law, a financial power of attorney must be revoked: 1) in writing, with a proper witness and a notary, and 2) with a high level of capacity; whereas a health-care power of attorney: 1) can be revoked orally, and 2) with a lower level of capacity, and under Delaware’s new Uniform Health-Care Decisions Act of 2023 to be effective September 30, 2025, disqualifying a statutory surrogate requires no capacity.
This revocability comparison highlights one of the many complexities of advance health-care planning.
Let’s begin by reviewing the stricter revocability standard, for a financial power of attorney.
Revoking a Financial Power of Attorney
The governing statute, 12 Del. C. Ch. 49A, does not permit oral revocation. Written formalities are required, meaning signed, dated, with a proper witness, and notarized. 49A-105.
The principal must specifically revoke the prior powers given and/or the agent to whom given. Merely executing a new financial power of attorney, silent on the past powers of attorney, is ineffective to revoke. 49A-110(e).
The principal must have legal capacity to revoke the power of attorney. 49A-116(c). Cases abound in the Delaware Court of Chancery where a principal’s capacity to make or revoke a power of attorney is at issue. See, for example, Harker v. Grimes, 2022 Del. Ch. LEXIS 175, *13-14 (May 31, 2022) (legal capacity to make a power of attorney is contractual capacity; “The appropriate test for a principal's capacity is contractual capacity. Lack of contractual capacity will be found if [the Principal] was 'incapable of understanding the nature and effect of the transaction' or her mental faculties were so impaired as to render her 'unable to properly, intelligently and fairly protect and preserve [her] property rights.'" A lack of contractual capacity must be shown by more than a "gradual weakening of mental capacity[.]"But, importantly, principals, like testators, are entitled to a presumption of capacity.”) (citations omitted). See also 49A-102 ((6) “Incapacity” means inability of an individual to manage his or her property or business affairs.”)
Healthcare Power of Attorney
Oral Revocation Permitted
By contrast, Delaware’s current and upcoming healthcare statutes expressly permit oral revocation.
The current statute (which is in effect until September 30, 2025) permits revocation by either a signed writing, or “any manner that communicates an intent to revoke done in the presence of 2 competent persons, 1 of whom is a health-care provider.” 16 Del. C. § 2504(a)(2).
That oral revocation must then be memorialized in writing and signed and dated by both witnesses, made a part of the medical record, and communicated to the supervising health care provider and to any health-care institution at which the patient is receiving care. 2504(b) and (c). But still, oral revocation is permitted.
Further, by contrast to a financial power of attorney revocation, a later written health-care directive need not expressly revoke the prior direction or agent, because “[a]n advance health-care directive that conflicts with an earlier advance health-care directive revokes the earlier directive to the extent of the conflict.” 2504(e).
Indeed, “the initiation of emergency treatment shall be presumed to represent a suspension of an advance health-care directive while receiving such emergency treatment.” 2504(f).
The new Uniform Health-Care Decisions Act of 2023, which goes into effect September 30, 2025, continues oral revocation and that a conflicting advance health-care directive revokes an earlier directive to the extent of the conflict. 2515(b) and (c).
Lower Capacity Standard Than Financial Power of Attorney
While the current statute requires a person be “mentally competent” to revoke all or part of an advance health-care directive, 2504(a), under 2514(b), “[a]n individual is presumed to have capacity to make a health-care decision and to give or revoke an advance health-care directive.”
One of the chief goals for enacting the new Uniform Healthcare Decisions Act of 2023 was to clarify what capacity is needed for what actions, and to provide mechanisms for rebutting the capacity presumption. While further implementation will be needed, the new statute makes significant strides to achieve those goals.
Capacity Required to Choose Health-Care Agent is Lower than Capacity to Make Health-Care Decision
The capacity needed to choose a health care agent is lower than the capacity to make a particular healthcare decision. The law recognizes that one might not be able to understand the risks, benefits and alternatives of a particular health-care decision, but does understand who one trusts to make a healthcare decision for oneself.
The new Uniform Healthcare Decisions Act of 2023 reflects this distinction. Under new 2503(a) (1) and (2), to make a health-care decision or instruction, an individual must “understand the nature and consequences of the decision or instruction, including the primary risks and benefits of the decision or choices expressed in the instruction,” whereas under new 2053(a)(3), to appoint an agent under a health-care power of attorney or identify a statutory default surrogate, an individual need only “recognize[] the identity of the individual being appointed or identified and understand[] the general nature of the relationship of the individual making the appointment or identification with the individual being appointed or identified.” Under new 2515, Revocation, the capacity standards are the same for revoking a health-care power of attorney.
New 2504 keeps the presumption of capacity but gives a mechanism (in addition to a judicial determination) to rebut that presumption: a finding of lack of capacity by a professional within the list specified in 2504 rebuts the presumption, to which the principal can object, requiring a finding by a second professional of that list.
The new statute contains a new protection for individuals who, because they have not appointed an agent in advance, must rely on someone in the statutory list of default surrogates to make a decision for them. Under new 2514(a), all patients may disqualify as surrogate someone they don’t trust:
§ 2514. Disqualification to act as default surrogate [Effective Sept. 30, 2025].
(a) An individual for whom a health-care decision would be made may disqualify another individual from acting as default surrogate for the first individual. The disqualification must be in a record signed by the first individual or communicated verbally or nonverbally to the individual being disqualified, another individual, or a responsible health-care professional. Disqualification under this subsection is effective even if made by an individual who lacks capacity to make an advance directive if the individual clearly communicates a desire that the individual being disqualified not make health-care decisions for the individual.
Conclusion
That health-care powers of attorney are revocable orally and with minimal capacity makes them complex advance planning tools because they are subject to change in fast-moving situations. These and other issues make advance health-care planning and implementation not as simple as they may seem.