Free Delaware Living Will Form

The document takes effect once a doctor determines you cannot make or communicate your own health care decisions. Delaware presumes you have the capacity to make these decisions, and the document can also name a substitute agent in case your first choice cannot serve.

Signing Requirements and Laws

This form has two parts with different signing rules under Delaware’s health care decisions law. If you do not name a health care agent, no witness is required for that part. If you name a health care agent, that part of the document must be in a record, in writing, and signed by you and by one adult witness.^[1.6][1.3]

That witness does not have to be in the same room as you. Delaware allows a witness to take part using real time audio and visual communication as if physically present with you. A witness may also take part through a real time audio connection, speaking to and hearing you, if the witness already knows you personally or can authenticate your identity by asking you questions that only you could answer.^[1.2]

Delaware also presumes you have the capacity to make these decisions.^[1.1]

An individual is presumed to have capacity to make or revoke a health-care decision, health-care instruction, and power of attorney for health care unless either of the following: a court has found the individual lacks capacity to do so. the presumption is rebutted under subsection (b) of this section.

The form itself also states that you may revoke or terminate it at any time.

Under 16 Del. C. § 2521(e), a health care professional or institution caring for you must comply with your instructions, except where § 2521(f) and (g) allow a refusal, for example on grounds of conscience or institutional policy.^[2.1]

Delaware Living Will Form Details

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What Is a Delaware Living Will, and What Makes It Valid?

A Delaware living will is valid once you sign it and, where the law requires one, the right witnesses sign it too. The rules above cover the general form. If you also want to add an advance mental health-care directive that cannot later be changed, Delaware treats that as a separate, more heavily witnessed document.

An advance mental health-care directive must be its own record, kept apart from the rest of your living will, and signed by you and by at least two adult witnesses.^[1.4] Each witness must attest, to the best of their knowledge, that:

• You understood the nature and consequences of the direction, including its risks and benefits.^[1.4]
• You made the direction voluntarily, without coercion or undue influence.^[1.4]

None of the witnesses can be the agent you named, the agent’s spouse, domestic partner, or cohabitant, or, if you live in a nursing home or long-term care facility, an owner, operator, employee, or contractor of that facility.^[1.4] When the directive includes a direction that it cannot be revoked, those witnesses must also be physically present with you when you sign.^[1.5]

How to Fill Out the Form, Step by Step

Filling out a Delaware living will form ensures that your health care preferences are respected if you become unable to communicate them yourself. The form covers your care instructions, your health care agent, and the witnesses who sign with you. Here is how to complete each part, in the order the form presents them.

1. Fill in the declaration. Enter your name, your address, and the date at the top of the form.
2. Initial your health care choices. Mark which treatments, such as CPR, tube or IV nutrition and hydration, a ventilator, dialysis, blood transfusions, or organ transplants, you do not want used if you become incapacitated.
3. Initial your end-of-life conditions. Choose the condition or conditions, such as a terminal illness or a permanent vegetative state, under which you want life-prolonging treatment withheld.
4. Add additional instructions. This step is optional. Write in any other health care wishes not already covered.
5. Name your health care agent. Give the name, address, and phone number of the person you want to make health care decisions for you.
6. Name a substitute agent. Choose a backup agent to act if your first choice is unable or unwilling to serve.
7. Review your agent’s powers. Unless you limit them, the form grants your agent the following powers:
   • Hire and pay health care personnel such as doctors, nurses, and therapists on your behalf.
   • Request, review, and receive your medical records, and sign releases to get that information.
   • Consent to or refuse medical care, surgery, or other procedures, and arrange or change your hospitalization or home care.
   • Ask that extraordinary life-prolonging procedures, such as CPR, dialysis, or ventilator use, not be started or be stopped.
   • After you have been in an irreversible coma for 30 days or more, request that nutrition and hydration be stopped, if your doctor also finds you would feel no pain from it.
   • Consent to pain-relief treatment, even treatment that could shorten your life or cause dependency.
   • Refuse a blood transfusion, unless you donated the blood yourself or it has been tested for infectious disease.
   • Arrange your cremation or burial and make anatomical gifts.
   • Sign documents, enter contracts, and pay costs needed to carry out these powers.
   • Make personal care decisions for you, such as where you live and who cares for your pets.
8. Sign and date the document before two witnesses. The form’s own witness acknowledgment states that neither witness can be your named agent, your health care provider, or an employee or operator of your health care or long-term care facility.
9. Have both witnesses complete the acknowledgment. Each witness prints their name and address and signs and dates the form.

Mistakes to Avoid When Signing

Most problems with this form come from the signing step, not the questions inside it. Review these four points before you sign, so your agent and health care provider can rely on the document when it matters.

• Skipping a witness because you plan to get the document notarized instead. This form does not offer that option. It asks for two qualifying witnesses, not a notary.
• Using a disqualified witness. Your named agent, your health care provider, or an employee or operator of your health care or long-term care facility cannot sign as a witness.
• Leaving the declaration or the witness signatures undated. Every signature on the form has a matching date field. Fill in all of them.
• Leaving your agent’s contact information blank. Without an address or phone number, your health care provider may not be able to reach your agent when it matters.

Other Delaware Forms
Below are various other Delaware templates completed by our users. Try our simple builder to customize these forms to your preferences.

Delaware Last Will Delaware Bill of Sale Delaware Power of Attorney Delaware Non-compete Agreement Delaware Prenuptial Agreement Delaware LLC Operating Agreement

General information, not legal or tax advice.

Sources

1. 16 Del. C. §§ 2504(a) to 2511.
   • 1.1 § 2504(a)
   • 1.2 § 2508
   • 1.3 § 2508(d)
   • 1.4 § 2509
   • 1.5 § 2509(e)
   • 1.6 § 2511
2. Del. Code tit. 16, § 2511.
   • 2.1 § 2521(e)

Mara Erlach

Writer & Attorney

Mara has been practicing estate planning and trust law in California since 2003, taking pride in helping clients of all backgrounds and asset profiles form a complete and customized estate plan. Her specialties are: estate planning, wills and trusts, trust and probate administration.