Readers may recall from our March newsletter that the first major overhaul to Delaware’s health-care statutes was signed by the Governor on September 30, 2024, titled the Delaware Uniform Health-Care Decisions Act of 2023 (“DUHCDA”). It is a complete replacement to all of Title 16 Chapter 25, which is Delaware’s current Health-Care Decisions Act. By its terms, the DUHCDA takes effect one year from the date of enactment. That means it becomes effective on September 30, 2025.

The DUHCDA has caused quite a stir. Or, actually, lack of a stir, because most people – including in the health care industry - don’t know about it.

And of those who do know about, almost uniformly no one knows how it will be implemented.

Implementation is a real concern because the DUHCDA changes very practical things, such as who decides decision-making capacity (formerly a physician was required, but now a social worker without a medical degree is permitted).

Another practical difference is now there is an objection process – that is required by statute - for a person who is determined to lack capacity and wants to object. That objection must be lodged in the medical record, notices must be given, and a rebuttal process exists: in short, an incapacity decision isn’t final until that process is finished.

Another practical difference is that certain very important powers do not exist for a health-care agent unless those powers are spelled out in the health-care directive: big things such as “place me in a nursing home for more than 100 days even if my needs can be somewhere else, I am not terminally ill, and I object.” How on earth are facilities – and families - supposed to know how to follow that law?

Above are just three examples of actual, handbook-type changes healthcare systems and facilities are required, by law, to make to their written procedures and on which to train employees.

Implementing Regulations Were Promised:

Where Are They?

Stakeholders consulted prior to DUHCDA passage advocated for the State to promulgate regulations to implement the DUHCDA, precisely to give health-care institutions the guidance they need to change their procedures and train their procedures. The one-year delay in effectiveness was to give those affected time to prepare, and part of that preparation was time for the State to promulgate implementing regulations. Indeed, in the EMS context, the enacting bill provided the “Director of Public Health shall have the authority to promulgate rules for EMS provider recognition and compliance with an advance health-care directive that has become effective pursuant to … of this title …”.

Where are those implementing regulations?

As of the date of this writing: unknown to this author.

And I serve on the DMOST Steering Committee, which is a statutorily-created steering committee whose purpose is to increase use of the Delaware Medical Orders for Scope of Treatment Act, which is Delaware’s real end of life tool, a medical order signed by a physician for end-of-life directions. In the six months I have served on the Committee, the Committee has inquired repeatedly of its various sources and still not received an answer as to the status of the implementing regulations. The Committee’s inquiries do continue, and we actually expect a response soon.

Will the DUHCDA Actually Take Effect September 30, 2025?

In light of all of the foregoing, in the last year, followers of the DUHCDA have wondered, with real cause: will the law actually take effect on September 30, 2025? If many don’t know about it, and implementing regulations haven’t been promulgated, how can the legislation go into effect on September 30, 2025?

It Looks Like the DUHCDA Will Actually Take Effect September 30, 2025

Absent other indication, it looks like the DUHCDA will actually take effect on September 30, 2025. One reason I say this is on July 21, 2025 Governor Meyer signed into law changes to Delaware’s other statutes to correct terminology and cross-references to the old Health-Care Decisions Act to the new DUHCDA. Senate Bill No. 93’s Synopsis even states, “this Act takes effect on September 30, 2025, to coincide with when the Delaware Uniform Health-Care Decisions Act of 2023 (DUHCDA 2023) takes effect.”

What Comes Next?

For sure, attorneys are sharpening their pencils and considering how to change their client counseling, and how if at all to revise health-care directives they prepare after September 30, 2025, because of the new DUHCDA.

Those in the healthcare industry are, or should be, watching the legislation, and we on the DMOST Steering Committee sure are watching for implementing regulations.

Why It Matters?

Unlike some changes in the law that may or may not impact the general population, the impact of these changes is real and matters to every single one of us. By definition, an agent only makes a health-care decision for another if that other is found to lack capacity – the most vulnerable of us all.