The Delaware Uniform Health-Care Decisions Act (DUHCDA) makes significant changes!

WILMINGTON — The Delaware Uniform Health-Care Decisions Act (UHCDA) is a sweeping overhaul of Delaware’s medical decision-making law took effect Tuesday, September 30th, changing how families, health-care providers and patients handle treatment choices when someone lacks capacity to make their own decisions.

At the heart of the law is the advance directive  — a legal document that allows people to outline their wishes for medical care and designate someone to make health decisions if they cannot. An advance directive typically includes a living will describing what treatments a patient does or does not want, and a health-care power of attorney naming a trusted “Health Care Agent” to carry out those instructions.

“An advance directive is your voice when you can’t speak for yourself,” said Catherine B. Read, Esquire, a Certified Elder Law Attorney with Estate & Elder Law Services in Greenville, Delaware and member of the Special Needs Alliance®. “It helps families avoid conflict in a crisis and gives doctors clear guidance about what you want. Without one, decisions can be left to people who may not know your wishes or to a system that defaults to who the law provides. The new law is intended to enable more people to prepare an advance directive, and to express priorities and wishes for quality of life that guide decision-making when unforeseen medical circumstances arise or expressed instructions don’t fit the situation.”

The Delaware Uniform Health-Care Decisions Act (DUHCDA), effective Sept. 30, replaces the state’s previous Health-Care Decisions Act and makes the most significant changes to health-care directives and surrogate authority in decades. Lawmakers and advocates say the new rules are designed to give health-care providers more meaningful guidance, patients more autonomy, and families more clarity, and importantly, consider that family structures are much different today. However, legal experts caution that uncertainty remains over how the very new law will be applied.

Major Changes in the Law

Understanding the Implications of the UHCDA

1. Capacity Presumed, With Exceptions
2. An individual is presumed to have the capacity to make health-care decisions unless a court rules otherwise or they are found to lack capacity by a physician, psychologist, physician assistant, nurse practitioner, or licensed social worker. This expands the number of people who can make this determination, as under past law a physician was required to determine incapacity. The new law also allows these determinations to be challenged in the Court of Chancery under newly established rules.
3. Optional Advance Directive Form
4. Delaware adopted a new optional form that allows a person to specify priorities and wishes for care in addition to treatment instructions. An important change in the new law is that certain powers must be expressly stated in the advance directive. These powers include the ability of the agent to arrange for admission to a nursing home or for mental health treatment, have access to medical records, and have flexibility in making health-care decisions. Without this language, health-care agents may struggle to carry out a patient’s wishes for admission to a nursing home, mental health treatment, or specific medical procedures.
5. The optional advanced directive form is required to protect the patient from abuse by ensuring that important decisions such as nursing home placement or psychiatric care are clearly defined in writing.
6. Streamlined Execution
7. The law eliminates the state Ombudsman’s office as a required witness for directives executed in nursing homes, a step intended to reduce formalities and make planning easier.
8. Expanded List of Health-Care Agents
9. The surrogate list has been broadened beyond those named in a power of attorney or a spouse to include adult children, parents, cohabitants, siblings and adult grandchildren. Supporters argue that this change better reflects modern families, which often do not conform to traditional forms.
10. Advance Mental Health-Care Directives
11. For the first time, Delawareans are expressly authorized to create directives specifically addressing mental health treatment. These allow individuals to authorize or exclude experimental treatments and even specify that a care plan created while healthy cannot later be revoked during a period of crisis.

First-in-the-Nation Law

The DUHCDA is the first State in the nation to adopt the Uniform Health-Care Decisions Act of 2023, meaning there is no precedent to guide attorneys, health-care workers or courts. The Delaware Court of Chancery only finalized its rules on the new law weeks ago, leaving uncertainty about how disputes will be handled in practice.

“This law is intended to encourage people to plan ahead and make it easier for them to do so,” said William W. Erhart, Esquire, another Certified Elder Law Attorney at Estate & Elder Law Services. “But the law is new, and lawyers, health-care professionals, social workers, and those who serve vulnerable individuals in long-term care settings are still learning the details.”

Read advises seniors and families to take three immediate steps:

1. The first priority is to select a loving, trusted person as your health-care agent, clearly communicate your intentions, and maintain relationship with that agent so the agent will know how to advocate for you when you need it.
2. Ask your estate planning attorney whether your current advance health-care planning documents comply with the new law.
3. Make any adjustments needed to ensure your plan matches your wishes under the new law.

Concerns and Issues Raised

While the law passed without significant opposition, questions remain.

Authority and Oversight: Some medical professionals worry that capacity determinations by non-medical professionals, such as social workers, could create inconsistent outcomes.

Expanded Surrogate List: Elder Law attorneys note that including domestic partners, cohabitants and extended family may lead to disputes in high-stakes cases, potentially delaying urgent medical decisions.

Advance Directive Safeguards: Simplified witnessing requirements could make directives easier to complete, but may also increase the risk of confusion or misuse.

Mental Health Directives: Hospitals and psychiatric providers are awaiting detailed guidance on how to implement the new Advance Mental Health-Care Directive requirements, raising concerns about uneven adoption across facilities.

Patient Protections: Disability rights advocates warn that the law’s definition of decision-making capacity could be misapplied, particularly for patients with dementia or psychiatric conditions, leaving some vulnerable to unwanted decisions.

Implementation Gaps: Health-care facilities are required to update policies and staff training, but administrators say the lack of finalized state regulations creates uncertainty.

Related Legislation

Two companion bills also worth noting:

• Senate Bill 83 expands the long-term care resident’s bill of rights to include domestic partners in visitation and room-sharing rights and prohibits discrimination based on protected class status.

• Senate Bill 85 establishes a new Class A misdemeanor for endangering the welfare of a vulnerable adult is pending approval in the House of Representatives.

Preparing for Change

Certified Elder Law Attorneys urge Delawareans to review their existing directives now. DUHCDA’s combination of broader surrogate recognition, expanded mental health protections and streamlined execution requirements is expected to reshape how end-of-life and long-term care decisions are made across the state.

“This is the biggest change in decades to how Delawareans designate their healthcare wishes in advance and how those wishes are carried out,” Read said. “The sooner people understand that health-care institutions and long-term care settings may have new processes to implement the new Health-Care Decisions Act, the better families will be prepared to advocate for their loved ones. Individuals should review their advance health-care documents with their attorneys and make updates to ensure their health-care agents have the powers they need under the new law.”

Editor’s Fact Box: 5 Things to Know About Delaware’s New Health-Care Law



• Effective Date: Sept. 30, 2025.
• New Surrogates: Domestic partners, cohabitants, siblings and adult grandchildren can now serve as health-care agents.
• Who Decides Capacity: Physicians, psychologists, physician assistants, nurse practitioners, and licensed social workers can make determinations; decisions may be appealed in Chancery Court.
• Advance Directive Form: A new optional form requires certain powers — such as long-term nursing home admission — to be explicitly authorized to protect patients from abuse and ensure decisions are clearly defined.
• Mental Health Directives: Delawareans can prepare binding directives for psychiatric care, even specifying they cannot revoke them during a future crisis.