SB 309 — AN ACT TO AMEND TITLE 12 AND TITLE 16 OF THE DELAWARE CODE RELATING TO HEALTH-CARE DECISIONS.
Last action — Signed by Governor
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✓Introduced
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✓In Committee
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✓Passed Senate
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✓Passed House
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✓To Executive
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6Enacted
This bill has been enacted into law. Introduced May 16, 2024. Enacted.
Odds of enactment
High chanceBased on the sponsor, cosponsors, and committee posture, this bill has a high chance of becoming law.
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Prognosis
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Enacted
Current position in the legislative process.
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3 sponsors
3 primary, 0 co-sponsors signed on.
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Single-party support
Sponsorship is currently within one party (1 D).
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Cleared a recorded vote
Passed 2 recorded votes so far.
Based on stage, sponsorship breadth, committee status, recorded votes, and cross-state momentum — a description of the observable signals, not a prediction.
Summary
This Act adopts the Uniform Health-Care Decisions Act of 2023 (UHCDA 2023) to supersede the Uniform Health-Care Decisions Act of 1993, which Delaware enacted in 1996. The UHCDA 2023 was authored by the Uniform Law Commission (ULC) and was developed in a multiyear collaborative and non-partisan process to modernize and expand on the 1993 version of the act. The UHCDA 2023 maintains processes to address how health-care decisions can be made by or on behalf of individuals who lack capacity, including: (1) Allowing individuals to appoint agents to make health-care decisions for them should they become unable to make those decisions for themselves. (2) Allowing individuals to provide their health-care professionals and agents with instructions about their values and priorities regarding their health care and to indicate medical treatment they do or do not wish to receive. (3) Authorizing certain people to make health-care decisions for individuals incapable of making their own decisions, but who have not appointed agents. (4) Setting forth agent, default surrogate, and health-care professional rights and duties. The UHCDA 2023 reflects substantial changes in how health care is delivered, increases in non-traditional familial relationships and living arrangements, the proliferation of the use of electronic documents, the growing use of separate advance directives exclusively for mental health care, and other recent developments. Some updates to the Act include: (1) Removal of administrative barriers that make the creation of an advance health-care directive more difficult. (2) Addition of provisions to guide determinations of incapacity, which is important because an agent’s or default surrogate’s (surrogate’s) authority to make health-care decisions for a patient typically commences when the patient lacks capacity to make decisions. The Act modernizes the definition of capacity so that it accounts for the functional abilities of an individual and clarifies that the individual may lack capacity to make one decision but retains capacity to make other decisions. (3) Authorizing the use of advance directives exclusively for mental health care. (4) Modernizing default surrogate provisions that allow family members and certain other people close to a patient to make decisions in the event the patient lacks capacity and has not appointed a health-care agent. The new default surrogate provisions update the priority list in the 1993 Act to reflect a broader array of relationships and family structures. They also provide additional options to address disagreements among default surrogates who have equal priority. (5) Clarifying the duties and powers of surrogates. For example, to reduce the likelihood that an individual’s health-care needs will go unmet due to financial barriers, the Act authorizes a surrogate to apply for health insurance for a patient who does not have another fiduciary authorized to do so. (6) Modernizing the optional model form to be readily understandable and accessible to diverse populations. The form gives individuals the opportunity to readily share information about their values and goals for medical care. Thus, it addresses a common concern raised by health-care professionals in the context of advance planning: that instructions included in advance directives often focus exclusively on preferences for particular treatments, and do not provide health-care professionals or surrogates with the type of information about patients’ goals and values that could be used to make value-congruent decisions when novel or unexpected situations arise. The form addresses these concerns by providing options for individuals to indicate goals and values, in addition to specific treatment preferences. This Act also adopts some of the optional provisions suggested by the ULC, including that an agent or surrogate has limited ability to consent to the long-term placement of an individual in a nursing home without express authorization. Specifically, without express authorization, the agent or surrogate may not consent to the placement for more than 100 days over the individual’s contemporaneous objection unless (1) no alternative living arrangement is reasonably feasible or (2) the individual is terminally ill. The ULC suggested 100 days in recognition that the federal Medicare program covers up to 100 days of nursing home care for qualified beneficiaries. This Act does not authorize mercy killing, assisted suicide, or euthanasia. In addition to style changes throughout, this Act makes some modifications to the UHCDA 2023 that are consistent with Act and should not disrupt uniform interpretation. These modifications include: (1) Revising language to conform to Delaware court practices. (2) Providing surrogates with the authority to file insurance or benefit claims on behalf of the individual and to appeal such outcomes, in addition to the UHCDA 2023 allowance for a surrogate to apply for insurance or benefits on behalf of the individual. As under the UHCDA 2023, a surrogate does not have the duty to perform these actions and may only do so if no other fiduciary is authorized to do so. (3) Creating an additional disqualification that disallows a potential surrogate from serving if the individual has a pending Protection From Abuse petition against the potential surrogate, the individual has a Protection From Abuse order against the potential surrogate, or the potential surrogate is the subject of a civil or criminal order prohibiting or limiting contact with the individual. Section 2 of this Act adds a new Chapter 25B to the Delaware Code. Chapter 25B will contain Delaware-specific supplements to the UHCDA 2023. These Delaware-specific additions are being placed within their own chapter to promote uniform interpretation of the UHCDA 2023. Chapter 25B includes § 2502B, which relates to health-care institution authorization to petition for guardianship for an individual to whom the institution is providing care. Section 2502B reinforces the work of the Non-Acute Medical Guardianship Task Force, created by Senate Concurrent Resolution No. 30 by the 150th General Assembly. That task force’s work resulted in the current § 2519 of Title 16, which offers a process and timeline whereby health-care institutions can take steps to help obtain a guardianship for patients who no longer require acute care and can be transferred to another type of health-care setting. While § 2502B retains the ability for a health-care institution to address the discharge of long-term stay patients without an authorized decisionmaker, it modifies the powers in the current § 2519 by doing all of the following: (1) Allowing health-care institutions to petition of the appointment of a guardian in instances beyond where an individual no longer needs acute care. (2) Reiterating that the health-care institution may only petition if they believe there is no less restrictive alternative that will meet the individual’s needs. (3) Streamlining notice requirements and changing who must receive these notices so that a health-care institution does not send a notice if there is a reasonably available surrogate. If there is a reasonably available surrogate and there is a dispute between the surrogate and the health-care institution about the treatment or level of care needed by an individual, then the parties should seek judicial relief under § 2526 of the UHCDA 2023 as opposed to using the guardianship process. The new Chapter 25B also contains a provision to encourage public awareness and use of advance mental health-care directives. Sections 3 through 11 of this Act update the Delaware Code in light of the adoption of the UHCDA 2023 by updating internal citations, updating terms to match the terms used in the UHCDA 2023, and ensuring a consistent list of default surrogate decisionmakers. This Act is effective immediately and is to be implemented 1 year from the date of enactment.
Bill Text
What changed in the latest version
1109 added · 48 removed1109 line(s) added, 48 removed.
Gay DELAWARE& STATERep. SENATE 152nd GENERAL ASSEMBLY SENATE AMENDMENT NO.
1Baumbach TORep. SENATE BILL NO.
309Harris AMENDDELAWARE SenateSTATE BillSENATE No.152nd GENERAL ASSEMBLY SENATE BILL NO.
309 byAN deletingACT linesTO 117AMEND throughTITLE 12412 inAND theirTITLE entirety16 andOF insertingTHE inDELAWARE lieuCODE thereofRELATING theTO followingHEALTH-CARE andDECISIONS. redesignating accordingly:
“(1)BE MadeIT onENACTED theBY basisTHE ofGENERAL aASSEMBLY contemporaneousOF examinationTHE bySTATE anyOF ofDELAWARE: the following individuals who must be licensed or otherwise authorized to practice in this State and must have training and expertise in the finding of lack of capacity:
Section 1.
Amend Chapter 25, Title 16 of the Delaware Code by deleting Chapter 25 in its entirety and by making deletions as shown by strike through and insertions as shown by underline as follows:
Chapter 25.
Uniform Health-Care Decisions Act.
§ 2501.
Short title.
This chapter may be cited as the Uniform Health-Care Decisions Act (2023).
§ 2502.
Definitions.
For purposes of this chapter:
(1) “Advance health-care directive” means a power of attorney for health care, health-care instruction, or both.
The term includes an advance mental health-care directive.
(2) “Advance mental health-care directive” means a power of attorney for health care, health-care instruction, or both, created under § 2509 of this title.
(3) “Agent” means an individual appointed under a power of attorney for health care to make a health-care decision for the individual who made the appointment.
The term includes a co-agent or alternate agent appointed under § 2520 of this title.
(4) “Capacity” means having capacity under § 2503 of this title.
(5) “Cohabitant” means each of two individuals who have been living together as a couple for at least one year after each became an adult or was emancipated and who are not married to each other or are not domestic partners with each other.
(6) “Default surrogate” means an individual authorized under § 2512 of this title to make a health-care decision for another individual.
(7) “Domestic partner” means an individual in a civil union or domestic partnership that is legally recognized in any state.
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05/16/2024 07:34 PM (8) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(9) “Family member” means a spouse, domestic partner, adult child, parent, or grandparent, or an adult descendant of a spouse, domestic partner, child, parent, or grandparent.
(10) “Guardian” means a person appointed under other law by a court to make decisions regarding the personal affairs of an individual, which may include health-care decisions.
The term does not include a guardian ad litem.
(11) “Health care” means care or treatment or a service or procedure to maintain, monitor, diagnose, or otherwise affect an individual’s physical or mental illness, injury, or condition.
The term includes mental health care.
(12) “Health-care decision” means a decision made by an individual or the individual’s surrogate regarding the individual’s health care, including all of the following:
Selection or discharge of a health-care professional or health-care institution.
b.
Approval or disapproval of a diagnostic test, surgical procedure, medication, therapeutic intervention, or other health care.
c.
Direction to provide, withhold, or withdraw artificial nutrition or hydration, mechanical ventilation, or other health care.
(13) “Health-care institution” means a facility or agency licensed, certified, or otherwise authorized or permitted by other law to provide health care in this State in the ordinary course of business.
Show all 500 changed lines (460 more)
(14) “Health-care instruction” means a direction, whether or not in a record, made by an individual that indicates the individual’s goals, preferences, or wishes concerning the provision, withholding, or withdrawal of health care.
The term includes a direction intended to be effective if a specified condition arises.
(15) “Health-care professional” means a physician or other individual licensed, certified, or otherwise authorized or permitted by other law of this State to provide health care in this State in the ordinary course of business or the practice of the physician’s or individual’s profession.
(16) “Individual” means an adult or emancipated minor.
(17) “Long-term care facility” means as defined in § 1102 of this title.
(18) “Mental health care” means care or treatment or a service or procedure to maintain, monitor, diagnose, or otherwise affect an individual’s mental illness or other psychiatric, psychological, or psychosocial condition.
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05/16/2024 07:34 PM (19) “Nursing home” means a nursing facility as defined in § 1919(a)(1) of the Social Security Act, 42 U.S.C.
§ 1396r(a)(1) or skilled nursing facility as defined in § 1819(a)(1) of the Social Security Act, 42 U.S.C.
§ 1395i– 3(a)(1).
(20) “Person” means an individual, estate, business or nonprofit entity, government or governmental subdivision, agency, or instrumentality, or other legal entity.
(21) “Person interested in the welfare of the individual” means any of the following:
a.
The individual’s surrogate.
b.
A family member of the individual.
c.
The cohabitant of the individual.
d.
A public entity providing health-care case management or protective services to the individual.
e.
A person appointed under other law to make decisions for the individual under a power of attorney for finances.
f.
A person that has an ongoing personal or professional relationship with the individual, including a person that has provided educational or health-care services or supported decision making to the individual.
(22) “Physician” means an individual authorized to practice medicine under subchapter III, Chapter 17 of Title 24.
(23) “Power of attorney for health care” means a record in which an individual appoints an agent to make health-care decisions for the individual.
(24) “Reasonably available” means being able to be contacted without undue effort and being willing and able to act in a timely manner considering the urgency of an individual’s health-care situation.
When used to refer to an agent or default surrogate, the term includes being willing and able to comply with the duties under § 2517 of this title in a timely manner considering the urgency of an individual’s health-care situation.
(25) “Record” means information either:
a.
Inscribed on a tangible medium.
b.
Stored in an electronic or other medium and retrievable in perceivable form.
(26) “Responsible health-care professional” means either:
a.
A health-care professional designated by an individual or the individual’s surrogate to have primary responsibility for the individual’s health care or for overseeing a course of treatment.
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In the absence of a designation under paragraph (26)a.
of this section or, if the professional designated under paragraph (26)a.
of this section is not reasonably available, a health-care professional who has primary responsibility for overseeing the individual’s health care or for overseeing a course of treatment.
(27) “Sign” means, with present intent to authenticate or adopt a record, to either:
a.
Execute or adopt a tangible symbol.
b.
Attach to or logically associate with the record an electronic symbol, sound, or process.
(28) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any other territory or possession subject to the jurisdiction of the United States.
The term includes a federally recognized Indian tribe.
(29) “Supported decision making” means assistance, from one or more persons of an individual’s choosing, that helps the individual make or communicate a decision, including by helping the individual understand the nature and consequences of the decision.
Supported decision making is not limited to assistance provided under a supported decision-making agreement under Chapter 94A of this title.
(30) “Surrogate” means any of the following:
a.
An agent.
b.
A default surrogate.
c.
A guardian authorized to make health-care decisions.
§ 2503.
Capacity.
(a) An individual has capacity for the purpose of this chapter if the individual is willing and able to communicate a decision independently or with appropriate services, technological assistance, supported decision making, or other reasonable accommodation and in making or revoking:
(1) A health-care decision, understands the nature and consequences of the decision, including the primary risks and benefits of the decision.
(2) A health-care instruction, understands the nature and consequences of the instruction, including the primary risks and benefits of the choices expressed in the instruction.
(3) An appointment of an agent under a health-care power of attorney or identification of a default surrogate under § 2512(b)(1) of this title, recognizes the identity of the individual being appointed or identified and understands the general nature of the relationship of the individual making the appointment or identification with the individual being appointed or identified.
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05/16/2024 07:34 PM (b) The right of an individual who has capacity to make a decision about the individual’s health care is not affected by whether the individual creates or revokes an advance health-care directive.
§ 2504.
Presumption of capacity;
overcoming presumption.
(a) 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:
(1) A court has found the individual lacks capacity to do so.
(2) The presumption is rebutted under subsection (b) of this section.
(b) Subject to §§ 2505 and 2506 of this title and subsection (c) of this section, a presumption under subsection (a) of this section may be rebutted by a finding that the individual lacks capacity:
(1) Made on the basis of a contemporaneous examination by any of the following:
a.
A psychologist.psychologist licensed or otherwise authorized to practice in this State.
An individual with training and expertise in the finding of lack of capacity who is licensed or otherwise authorized to practice in this State as:
1.
d.2.
3.
A licensed clinical social worker.
d.
A responsible health-care professional not described in paragraphs (b)(1)a.
through (b)(1)c.
of this section if both of the following:
1.
The individual about whom the finding is to be made is experiencing a health condition requiring a decision regarding health-care treatment to be made promptly to avoid loss of life or serious harm to the health of the individual.
2.
An individual listed in paragraphs (b)(1)a.
through (b)(1)c.
of this section is not reasonably available.
(2) Made in accordance with accepted standards of the profession and the scope of practice of the individual making the finding and to a reasonable degree of certainty;
and (3) Documented in a record signed by the individual making the finding that includes an opinion of the cause, nature, extent, and probable duration of the lack of capacity.
(c) The finding under subsection (b) of this section may not be made by any of the following:
(1) A family member of the individual presumed to have capacity.
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05/16/2024 07:34 PM (2) The cohabitant of the individual or a descendant of the cohabitant.
(3) The individual’s surrogate, a family member of the surrogate, or a descendant of the surrogate.
(d) If the finding under subsection (b) of this section was based on a condition the individual no longer has or a responsible health-care professional subsequently has good cause to believe the individual has capacity, the individual is presumed to have capacity unless a court finds the individual lacks capacity or the presumption is rebutted under subsection (b) of this section.
§ 2505.
Notice of finding of lack of capacity;
right to object.
(a) As soon as reasonably feasible, an individual who makes a finding under § 2504(b) of this title shall inform the individual about whom the finding was made or the individual’s responsible health-care professional of the finding.
(b) As soon as reasonably feasible, a responsible health-care professional who is informed of a finding under § 2504(b) of this title shall inform the individual about whom the finding was made and the individual’s surrogate.
(c) An individual found under § 2504(b) of this title to lack capacity may object to the finding in any of the following ways:
(1) By orally informing a responsible health-care professional.
(2) In a record provided to a responsible health-care professional or the health-care institution in which the individual resides or is receiving care.
(3) By another act that clearly indicates the individual’s objection.
(d) If the individual objects under subsection (c) of this section, the finding under § 2504(b) of this title is not sufficient to rebut a presumption of capacity in § 2504(a) of this title and the individual must be treated as having capacity unless any of the following:
(1) The individual withdraws the objection.
(2) A court finds the individual lacks the presumed capacity.
(3) The individual is experiencing a health condition requiring a decision regarding health-care treatment to be made promptly to avoid imminent loss of life or serious harm to the health of the individual.
(4) Subject to subsection (e) of this section, the finding is confirmed by a second finding made by an individual authorized under § 2504(b)(1) of this title who satisfies all of the following:
a.
Did not make the first finding.
b.
Is not a family member of the individual who made the first finding.
c.
Is not the cohabitant of the individual who made the first finding or a descendant of the cohabitant.
d.
Paragraphs 2504(b)(2) through (b)(3) of this title.
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05/16/2024 07:34 PM (e) A second finding that the individual lacks capacity under paragraph (d)(4) of this section is not sufficient to rebut the presumption of capacity if the individual is requesting the provision or continuation of life-sustaining treatment and the finding is being used to make a decision to withhold or withdraw the treatment.
(f) As soon as reasonably feasible, a health-care professional who is informed of an objection under subsection (c) of this section shall do both of the following:
(1) Communicate the objection to a responsible health-care professional.
(2) Document the objection and the date of the objection in the individual’s medical record or communicate the objection and the date of the objection to an administrator with responsibility for medical records of the health-care institution providing health care to the individual, who shall document the objection and the date of the objection in the individual’s medical record.
§ 2506.
Judicial review of finding of lack of capacity.
(a) An individual found under § 2504(b) of this title to lack capacity, a responsible health-care professional, the health-care institution providing health care to the individual, or a person interested in the welfare of the individual may petition the Court of Chancery in the county in which the individual resides or is located to determine whether the individual lacks capacity.
(b) The court in which a petition under subsection (a) of this section is filed shall appoint an attorney ad litem.
The court shall hear the petition on an expedited basis.
The court shall determine whether the individual lacks capacity on an expedited basis.
The court may determine the individual lacks capacity only if the court finds by clear and convincing evidence that the individual lacks capacity.
§ 2507.
Health-care instruction.
(a) An individual may create a health-care instruction that expresses the individual’s preferences for future health care, including preferences regarding all of the following:
(1) Health-care professionals or health-care institutions.
(2) How a health-care decision will be made and communicated.
(3) Persons that should or should not be consulted regarding a health-care decision.
(4) A person to serve as guardian for the individual if one is appointed.
(5) An individual to serve as a default surrogate.
(b) A health-care professional to whom an individual communicates or provides an instruction under subsection (a) of this section shall document the instruction and the date of the instruction in the individual’s medical record or communicate the instruction and date of the instruction to an administrator with responsibility for medical records of the LC :
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05/16/2024 07:34 PM health-care institution providing health care to the individual, who shall document the instruction and the date of the instruction in the individual’s medical record.
(c) A health-care instruction made by an individual that conflicts with an earlier health-care instruction made by the individual, including an instruction documented in a medical order, revokes the earlier instruction to the extent of the conflict.
(d) A health-care instruction may be in the same record as a power of attorney for health care.
§ 2508.
Power of attorney for health care.
(a) An individual may create a power of attorney for health care to appoint an agent to make health-care decisions for the individual.
(b) An individual is disqualified from acting as agent for an individual who lacks capacity to make health-care decisions if any of the following apply:
(1) A court finds that the potential agent poses a danger to the individual’s well-being, even if the court does not issue a Protection From Abuse order against the potential agent.
(2) The potential agent is an owner, operator, employee, or contractor of a nursing home or long-term care facility in which the individual resides or is receiving care, unless the owner, operator, employee, or contractor is a family member of the individual, the cohabitant of the individual, or a descendant of the cohabitant.
(3) The individual has a pending Protection From Abuse petition against the potential agent.
(4) The individual has a Protection From Abuse order against the potential agent.
(5) The potential agent is the subject of a civil or criminal order prohibiting or limiting contact with the individual.
(c) A health-care decision made by an agent is effective without judicial approval.
(d) A power of attorney for health care must be in a record, signed by the individual creating the power, and signed by an adult witness who satisfies all of the following:
(1) Reasonably believes the act of the individual to create the power of attorney is voluntary and knowing.
(2) Is not the agent appointed by the individual.
(3) Is not the agent’s spouse, domestic partner, or cohabitant.
(4) If the individual resides or is receiving care in a nursing home or long-term care facility, is not the owner, operator, employee, or contractor of the nursing home or long-term care facility.
(5) Is present when the individual signs the power of attorney or when the individual represents that the power of attorney reflects the individual’s wishes.
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05/16/2024 07:34 PM (e) A witness under subsection (d) of this section is considered present if the witness and the individual are any of the following:
(1) Physically present in the same location.
(2) Using electronic means that allow for real time audio and visual transmission and communication in real time to the same extent as if the witness and the individual were physically present in the same location.
(3) Able to speak to and hear each other in real time through audio connection if the identity of the individual is personally known to the witness or the witness is able to authenticate the identity of the individual by receiving accurate answers from the individual that enable the authentication.
(f) A power of attorney for health care may include a health-care instruction.
§ 2509.
Advance Mental Health-Care Directive (a) An individual may create an advance health-care directive that addresses only mental health care for the individual.
The directive may include a health-care instruction, a power of attorney for health care, or both.
(b) A health-care instruction under this section may include the individual’s preferences for mental health care, including preferences regarding any of the following:
(1) General philosophy and objectives regarding mental health care.
(2) Specific goals, preferences, and wishes regarding the provision, withholding, or withdrawal of a form of mental health care, including all of the following:
a.
Preferences regarding professionals, programs, and facilities.
b.
Admission to a mental-health facility, including duration of admission.
c.
Preferences regarding medications.
d.
Refusal to accept a specific type of mental health care, including a medication.
APreferences licensedregarding clinicalcrisis socialintervention. worker.”.
FURTHER(c) AMENDA Senatepower Billof No.attorney for health care under this section may appoint an agent to make decisions only for mental health care.
309(d) onAn linesindividual 125may anddirect 130in byan deletingadvance “(b)(1)c.”mental andhealth-care insertingdirective that, if the individual is experiencing a psychiatric or psychological event specified in lieuthe thereofdirective, “(b)(1)e.”.the individual may not revoke the directive or a part of the directive.
FURTHER(e) AMENDIf Senatean Billadvance No.mental health-care directive includes a direction under subsection (d) of this section, the advance mental health-care directive must be in a record that is separate from any other advance health-care directive created by the LC :
309CGW on: line 237 by deleting “Directive” and inserting in lieu thereof “Directive.”.
FURTHERAF AMENDPage Senate9 Billof No.35 Released:
30905/16/2024 07:34 PM individual and signed by deletingthe linesindividual 420creating throughthe 423advance inmental theirhealth-care entiretydirective and insertingat inleast lieutwo thereofadult witnesses who satisfy all of the following:
“PART(1) D:Attest that to the best of their knowledge, the individual understood the nature and consequences of the direction, including its risks and benefits.
ORGAN(2) DONATIONAttest Thisthat partto letsthe youbest donateof yourtheir organsknowledge, afterthe youindividual die.made the direction voluntarily and without coercion or undue influence.
You(3) mayAre havenot alreadythe indicatedagent aappointed decisionby onthe yourindividual. driver’s license, identification card, or in another registry.
(4) Are not the agent’s spouse, domestic partner, or cohabitant.
(5) If the individual resides in a nursing home or long-term care facility, are not the owner, operator, employee, or contractor of the nursing home or long-term care facility.
(6) Are physically present in the same location as the individual.
§ 2510.
Relationship of advance mental health-care directive and other advance health-care directive.
(a) If a direction in an advance mental health-care directive of an individual conflicts with a direction in another advance health-care directive of the individual, the later direction revokes the earlier direction to the extent of the conflict.
(b) An appointment of an agent to make decisions only for mental health care for an individual does not revoke an earlier appointment of an agent to make other health-care decisions for the individual.
A later appointment revokes the authority of an agent under the earlier appointment to make decisions about mental health care unless otherwise specified in the power of attorney making the later appointment.
(c) An appointment of an agent to make health-care decisions for an individual other than decisions about mental health care made after appointment of an agent authorized to make only mental health-care decisions does not revoke the appointment of the agent authorized to make only mental health-care decisions.
§ 2511.
Optional form.
The following form may be used to create an advance health-care directive:
ADVANCE HEALTH-CARE DIRECTIVE HOW YOU CAN USE THIS FORM You can use this form if you wish to name someone to make health-care decisions for you in case you cannot make decisions for yourself.
This is called giving the person a power of attorney for health care.
This person is called your Agent.
You can also use this form to state your wishes, preferences, and goals for health care, and to say if you want to be an organ donor after you die.
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05/16/2024 07:34 PM YOUR NAME AND DATE OF BIRTH Name:
Date of birth:
PART A:
NAMING AN AGENT This part lets you name someone else to make health-care decisions for you.
DONATIONNAMING YouAN mayAGENT markI orwant initialthe onlyfollowing oneperson choice.to make health-care decisions for me if I cannot make decisions for myself:
LeaveName: this “donation” section blank if you do not want to include your decision here.
FURTHEROptional AMENDcontact Senateinformation Bill(it No.is helpful to include information such as address, phone, and email):
3092. between lines 729 and 730 by inserting the following:
NAMING AN ALTERNATE AGENT I want the following person to make health-care decisions for me if I cannot and my Agent is not able or available to make them for me:
Name:
Optional contact information (it is helpful to include information such as address, phone, and email):
3.
LIMITING YOUR AGENT’S AUTHORITY I give my Agent the power to make all health-care decisions for me if I cannot make those decisions for myself, except the following:
(If you do not add a limitation here, your Agent will be able make all health-care decisions that an Agent is permitted to make under State law.) PART B:
HEALTH-CARE INSTRUCTIONS This part lets you state your priorities for health care and to state types of health care you do and do not want.
1.
INSTRUCTIONS ABOUT LIFE-SUSTAINING TREATMENT This section gives you the opportunity to say how you want your Agent to act while making decisions for you.
You may mark or initial each choice.
You also may leave any choice blank.
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06/17/202405/16/2024 12:4907:34 PM “(c)Treatment. This section must not be construed to provide immunity for health care that does not meet the generally accepted health-care standards applicable to the health-care professional or institution.”.
FURTHERMedical AMENDtreatment Senateneeded Billto No.keep me alive but not needed for comfort or any other purpose should (mark or initial all that apply):
309(____) onAlways linebe 954given by deleting “is effective immediately and is to beme. implemented” and inserting in lieu thereof “takes effect”.
FURTHER(If AMENDyou Senatemark Billor No.initial this choice, you should not mark or initial other choices in this “treatment” section.).
309(____) onNot linesbe 807,given 814,to 816,me 818,if I have a condition that is not curable and 822is byexpected deletingto “1cause yearmy after”.death soon, even if treated.
SYNOPSIS(____) ThisNot Amendmentbe doesgiven allto ofme theif following:I am unconscious and I am not expected to be conscious again.
(____) Not be given to me if I have a medical condition from which I am not expected to recover that prevents me from communicating with people I care about, caring for myself, and recognizing family and friends.
(____) Other (write what you want or do not want):
Food and liquids.
If I can’t swallow and staying alive requires me to get food or liquids through a tube or other means for the rest of my life, then food or liquids should (mark or initial all that apply):
(____) Always be given to me.
(If you mark or initial this choice, you should not mark or initial other choices in this “food and liquids” section).
(____) Not be given to me if I have a condition that is not curable and is expected to cause me to die soon, even if treated.
(____) Not be given to me if I am unconscious and am not expected to be conscious again.
(____) Not be given to me if I have a medical condition from which I am not expected to recover that prevents me from communicating with people I care about, caring for myself, and recognizing family and friends.
(____) Other (write what you want or do not want):
Pain relief.
If I am in significant pain, care that will keep me comfortable but is likely to shorten my life should (mark or initial all that apply):
(____) Always be given to me.
(If you mark or initial this choice, you should not mark or initial other choices in this “pain relief” section.) LC :
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05/16/2024 07:34 PM (____) Never be given to me.
(If you mark or initial this choice, you should not mark or initial other choices in this “pain relief” section.) (____) Be given to me if I have a condition that is not curable and is expected to cause me to die soon, even if treated.
(____) Be given to me if I am unconscious and am not expected to be conscious again.
(____) Be given to me if I have a medical condition from which I am not expected to recover that prevents me from communicating with people I care about, caring for myself, and recognizing family and friends.
(____) Other (write what you want or do not want):
2.
MY PRIORITIES You can use this section to indicate what is important to you, and what is not important to you.
This information can help your Agent make decisions for you if you cannot.
It also helps others understand your preferences.
You may mark or initial each choice.
You also may leave any choice blank.
Staying alive as long as possible even if I have substantial physical limitations is:
(____) Very important (____) Somewhat important (____) Not important Staying alive as long as possible even if I have substantial mental limitations is:
(____) Very important (____) Somewhat important (____) Not important Being free from significant pain is:
(____) Very important (____) Somewhat important (____) Not important Being independent is:
(____) Very important (____) Somewhat important (____) Not important LC :
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05/16/2024 07:34 PM Having my Agent talk with my family before making decisions about my care is:
(____) Very important (____) Somewhat important (____) Not important Having my Agent talk with my friends before making decisions about my care is:
(____) Very important (____) Somewhat important (____) Not important 3.
OTHER INSTRUCTIONS You can write in this section more information about your goals, values, and preferences for treatment, including care you want or do not want.
You can also use this section to name anyone who you do not want to make decisions for you under any conditions.
PART C:
OPTIONAL SPECIAL POWERS AND GUIDANCE This part lets you give your Agent additional powers, and to provide more guidance about your wishes.
You may mark or initial each choice.
You also may leave any choice blank.
CombinesOPTIONAL theSPECIAL listPOWERS ofMy health-careAgent professionalscan whodo may make capacity determinations and the requirementsfollowing forthings makingONLY thoseif determinationsI intohave amarked singleor list,initialed andthem makesbelow: corresponding internal citation changes.
(____) Admit me as a voluntary patient to a facility for mental health treatment for up to _____ days (write in the number of days you want like 7, 14, 30 or another number).
(If I do not mark or initial this choice, my Agent MAY NOT admit me as a voluntary patient to this type of facility.) (____) Place me in a nursing home for more than 100 days even if my needs can be met somewhere else, I am not terminally ill, and I object.
(If I do not mark or initial this choice, my Agent MAY NOT do this.) 2.
ACCESS TO MY HEALTH INFORMATION My Agent may obtain, examine, and share information about my health needs and health care if I am not able to make decisions for myself.
If I mark or initial below, my Agent may also do that at any time my Agent thinks it will help me.
(____) I give my Agent permission to obtain, examine, and share information about my health needs and health care whenever my Agent thinks it will help me.
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05/16/2024 07:34 PM 3.
FLEXIBILITY FOR MY AGENT Mark or initial below if you want to give your Agent flexibility in following instructions you provide in this form.
If you do not, your Agent must follow the instructions even if your Agent thinks something else would be better for you.
(____) I give my Agent permission to be flexible in applying these instructions if my Agent thinks it would be in my best interest based on what my Agent knows about me.
4.
NOMINATION OF GUARDIAN You can say who you would want as your guardian if you needed one.
A guardian is a person appointed by a court to make decisions for someone who cannot make decisions.
Filling this out does NOT mean you want or need a guardian.
There is no guarantee that the court will appoint the person you want as guardian.
If a court appoints a guardian to make personal decisions for me, I want the court to choose:
(____) My Agent named in this form.
If my Agent cannot be a guardian, I want the Alternate Agent named in this form.
(____) Other (write who you would want and their contact information):
PART D:
ORGAN DONATION This part lets you donate your organs after you die.
You may leave any item blank.
1.
DONATION You may mark or initial only one choice.
(____) I donate my organs, tissues, and other body parts after I die, even if it requires maintaining treatments that conflict with other instructions I have put in this form, EXCEPT for those I list below (list any body parts you do NOT want to donate):
(____) I do not want my organs, tissues, or other body parts donated to anybody for any reason.
(If you mark or initial this choice, you should skip the “purpose of donation” section.) 2.
PURPOSE OF DONATION You may mark or initial all that apply.
(If you do not mark or initial any of the purposes below, your donation can be used for all of them.) Organs, tissues, or other body parts that I donate may be used for:
(____) Transplant (____) Therapy LC :
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05/16/2024 07:34 PM (____) Research (____) Education (____) All of the above PART E:
SIGNATURES YOUR SIGNATURE Sign your name:
Today’s date:
City/Town/Village and State (optional):
SIGNATURE OF A WITNESS You need a witness if you are using this form to name an Agent.
The witness must be an adult and cannot be the person you are naming as Agent or the Agent’s spouse, domestic partner, or someone the Agent lives with as a couple.
If you live or are receiving care in a nursing home or long-term care facility, the witness cannot be an employee or contractor of the home or someone who owns or runs the home.
Name of Witness:
Signature of Witness:
(Only sign as a witness if you think the person signing above is doing it voluntarily.) Date witness signed:
PART F:
INFORMATION FOR AGENTS 1.
If this form names you as an Agent, you can make decisions about health care for the person who named you when the person cannot make their own.
CorrectsIf you make a typographicaldecision error.for the person, follow any instructions the person gave, including any in this form.
SinceIf 50%you ofdo allnot holdersknow ofwhat Delawarethe driver'sperson licenseswould andwant, identificationmake cards have already indicated their preferences about organ donation via their driver’s license or identification card, the Optionaldecision Form is amended to remind individuals that theyyou maythink haveis already indicated their preference and to reinforce that no decision needs to be inserted in thisthe partperson’s ofbest theinterest. form.
To figure out what is in the person’s best interest, consider the person’s values, preferences, and goals if you know them or can learn them.
Some of these preferences may be in this form.
You should also consider any behavior or communication from the person that indicates what the person currently wants.
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5.§ 2512.
MakesDefault thissurrogate. Act effective 1 year from the Act's enactment and corresponding changes.
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05/16/2024 07:34 PM (a) A default surrogate may make a health-care decision for an individual who lacks capacity to make health-care decisions and for whom an agent, or guardian authorized to make health-care decisions, has not been appointed or is not reasonably available.
(b) Unless the individual has an advance health-care directive that indicates otherwise, a member of any of the following classes, in descending order of priority, who is reasonably available and not disqualified under § 2514 of this title, may act as a default surrogate for the individual:
(1) An adult the individual has identified, other than in a power of attorney for health care, to make a health- care decision for the individual if the individual cannot make the decision.
(2) The individual’s spouse or domestic partner, unless any of the following:
a.
A petition for annulment, divorce, dissolution of marriage, legal separation, or termination has been filed and not dismissed or withdrawn.
b.
A decree of annulment, divorce, dissolution of marriage, legal separation, or termination has been issued.
c.
The individual and the spouse or domestic partner have agreed in a record to a legal separation.
d.
The spouse or domestic partner has deserted the individual for more than 1 year.
(3) The individual’s adult child or parent.
(4) The individual’s cohabitant.
(5) The individual’s adult sibling.
(6) The individual’s adult grandchild or grandparent.
(7) An adult not listed in paragraphs (b)(1) through (b)(6) of this section who has assisted the individual with supported decision making routinely during the preceding six months.
(8) The individual’s adult stepchild not listed in paragraphs (b)(1) through (b)(7) of this section whom the individual actively parented during the stepchild’s minor years and with whom the individual has an ongoing relationship.
(9) An adult not listed in paragraphs (b)(1) through (b)(8) of this section who has exhibited special care and concern for the individual and is familiar with the individual’s personal values.
(c) A responsible health-care professional may require an individual who assumes authority to act as a default surrogate to provide a declaration in a record under penalty of perjury stating facts and circumstances reasonably sufficient to establish the authority.
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05/16/2024 07:34 PM (d) If a responsible health-care professional reasonably determines that an individual who assumed authority to act as a default surrogate is not willing or able to comply with a duty under § 2517 of this title or fails to comply with the duty in a timely manner, the professional may recognize the individual next in priority under subsection (b) of this section as the default surrogate.
(e) A health-care decision made by a default surrogate is effective without judicial approval.
§ 2513.
Disagreement among default surrogates.
(a) A default surrogate who assumes authority under § 2512 of this title shall inform a responsible health-care professional if two or more members of a class under § 2512(b) of this title have assumed authority to act as default surrogates and the members do not agree on a health-care decision.
(b) A responsible health-care professional shall comply with the decision of a majority of the members of the class with highest priority under § 2512(b) of this title who have communicated their views to the professional and the professional reasonably believes are acting consistent with their duties under § 2517 of this title.
(c) If a responsible health-care professional is informed that the members of the class who have communicated their views to the professional are evenly divided concerning the health-care decision, the professional shall make a reasonable effort to solicit the views of members of the class who are reasonably available but have not yet communicated their views to the professional.
The professional, after the solicitation, shall comply with the decision of a majority of the members who have communicated their views to the professional and the professional reasonably believes are acting consistent with their duties under § 2517 of this title.
(d) If the class remains evenly divided after the effort is made under subsection (c) of this section, the health-care decision must be made as provided by other law of this State regarding the treatment of an individual who is found to lack capacity.
§ 2514.
Disqualification to act as default surrogate.
(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.
(b) An individual is disqualified from acting as a default surrogate for an individual who lacks capacity to make health-care decisions if any of the following apply:
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05/16/2024 07:34 PM (1) A court finds that the potential default surrogate poses a danger to the individual’s well-being, even if the court does not issue a Protection from Abuse order against the potential default surrogate.
(2) The potential default surrogate is an owner, operator, employee, or contractor of a nursing home or long- term care facility in which the individual is residing or receiving care unless the owner, operator, employee, or contractor is a family member of the individual, the cohabitant of the individual, or a descendant of the cohabitant.
(3) The potential default surrogate refuses to provide a timely declaration under § 2512(c) of this title.
(4) The individual has a pending Protection From Abuse petition against the potential default surrogate.
(5) The individual has a Protection From Abuse order against the potential default surrogate.
(6) The potential default surrogate is the subject of a civil or criminal order prohibiting or limiting contact with the individual.
§ 2515.
Revocation.
(a) An individual may revoke the appointment of an agent, the designation of a default surrogate, or a health-care instruction in whole or in part, unless any of the following:
(1) A court finds the individual lacks capacity to do so.
(2) The individual is found under § 2504(b) of this title to lack capacity to do so and, if the individual objects to the finding, the finding is confirmed under § 2505(d)(4) of this title.
(3) The individual created an advance mental health-care directive that includes the provision under § 2509(d) of this title and the individual is experiencing the psychiatric or psychological event specified in the directive.
(b) Revocation under subsection (a) of this section may be by any act of the individual that clearly indicates that the individual intends to revoke the appointment, designation, or instruction, including an oral statement to a health-care professional.
(c) Except as provided in § 2510 of this title, an advance health-care directive of an individual that conflicts with another advance health-care directive of the individual revokes the earlier directive to the extent of the conflict.
(d) Unless otherwise provided in an individual’s advance health-care directive appointing an agent, the appointment of a spouse or domestic partner of an individual as agent for the individual is revoked if any of the following:
(1) A petition for annulment, divorce, dissolution of marriage, legal separation, or termination has been filed and not dismissed or withdrawn.
(2) A decree of annulment, divorce, dissolution of marriage, legal separation, or termination has been issued.
(3) The individual and the spouse or domestic partner have agreed in a record to a legal separation.
(4) The spouse or domestic partner has deserted the individual for more than 1 year.
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05/16/2024 07:34 PM § 2516.
Validity of advance health-care directive;
conflict with other law.
(a) An advance health-care directive created outside this State is valid if it complies with either of the following:
(1) The law of the state specified in the directive or, if a state is not specified, the state in which the individual created the directive.
(2) This chapter.
(b) A person may assume without inquiry that an advance health-care directive is genuine, valid, and still in effect, and may implement and rely on it, unless the person has good cause to believe the directive is invalid or has been revoked.
(c) An advance health-care directive, revocation of a directive, or a signature on a directive or revocation may not be denied legal effect or enforceability solely because it is in electronic form.
(d) Evidence relating to an advance health-care directive, revocation of a directive, or a signature on a directive or revocation may not be excluded in a proceeding solely because the evidence is in electronic form.
(e) This chapter does not affect the validity of an electronic record or signature that is valid under Chapter 12A of Title 6.
(f) If this chapter conflicts with other law of this State relating to the creation, execution, implementation, or revocation of an advance health-care directive, this chapter prevails.
§ 2517.
Duties of agent and default surrogate.
(a) An agent or default surrogate has a fiduciary duty to the individual for whom the agent or default surrogate is acting when exercising or purporting to exercise a power under § 2518 of this title.
(b) An agent or default surrogate shall make a health-care decision in accordance with the direction of the individual in an advance health-care directive and other goals, preferences, and wishes of the individual to the extent known or reasonably ascertainable by the agent or default surrogate.
(c) If there is not a direction in an advance health-care directive and the goals, preferences, and wishes of the individual regarding a health-care decision are not known or reasonably ascertainable by the agent or default surrogate, the agent or default surrogate shall make the decision in accordance with the agent’s or default surrogate’s determination of the individual’s best interest.
(d) In determining the individual’s best interest under subsection (c) of this section, the agent or default surrogate shall do all of the following:
(1) Give primary consideration to the individual’s contemporaneous communications, including verbal and nonverbal expressions.
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05/16/2024 07:34 PM (2) Consider the individual’s values to the extent known or reasonably ascertainable by the agent or default surrogate.
(3) Consider the risks and benefits of the potential health-care decision.
(e) As soon as reasonably feasible, an agent or default surrogate who is informed of a revocation of an advance health-care directive or disqualification of the agent or default surrogate shall communicate the revocation or disqualification to a responsible health-care professional.
§ 2518.
Powers of agent and default surrogate.
(a) Except as provided in subsection (c) of this section, the power of an agent or default surrogate commences when the individual is found under § 2504(b) of this title or by a court to lack capacity to make a health-care decision.
The power ceases if the individual later is found to have capacity to make a health-care decision, or the individual objects under § 2505(c) of this title to the finding of lack of capacity under § 2504(b) of this title.
The power resumes if both of the following:
(1) The power ceased because the individual objected under § 2505(c) of this title.
(2) The finding of lack of capacity is confirmed under § 2505(d)(4) of this title or a court finds that the individual lacks capacity to make a health-care decision.
(b) An agent or default surrogate may request, receive, examine, copy, and consent to the disclosure of medical and other health-care information about the individual if the individual would have the right to request, receive, examine, copy, or consent to the disclosure of the information.
(c) A power of attorney for health care may provide that the power of an agent under subsection (b) of this section commences on appointment.
(d)(1) If no other person is authorized to do so, an agent or default surrogate may do all of the following on behalf of the individual:
a.
Apply for public or private health insurance and benefits.
b.
File a claim under the individual’s insurance and benefits.
c.
Appeal a claim under the individual’s insurance and benefits, including an internal, administrative, or judicial appeal.
(2) An agent or default surrogate who may act under paragraph (d)(1) of this section does not, solely by reason of the power, have a duty to act under paragraph (d)(1) of this section.
(e) An agent or default surrogate may not consent to voluntary admission of the individual to a facility for mental health treatment unless both of the following:
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Action History
-
Signed by Governor
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Passed By House. Votes: 40 YES 1 NO
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Reported Out of Committee (Health & Human Development) in House with 1 Favorable, 9 On Its Merits
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Assigned to Health & Human Development Committee in House
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Passed By Senate. Votes: 19 YES 2 NO
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Amendment SA 1 to SB 309 - Passed By Senate. Votes: 20 YES 1 NO
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Amendment SA 1 to SB 309 - Introduced and Placed With Bill
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Reported Out of Committee (Health & Social Services) in Senate with 4 On Its Merits
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Introduced and Assigned to Health & Social Services Committee in Senate
Sponsors
- Kyle Evans Gay · Primary
- Paul S. Baumbach · Primary
- Kerri Evelyn Harris · Primary
Sponsorship breakdown
Export CSV (upgrade) →3 sponsors · 0 co-sponsors · 59 not signed on · 3 voted No
Sponsors (3)
- Kyle Evans Gay
- Paul S. Baumbach
- Kerri Evelyn Harris Democratic
Co-sponsors (0)
None.
Not signed on (59)
59 members have not signed on to this bill.
Show all 59 →"Not signed on" means a member has not sponsored or co-sponsored this bill — it does not imply opposition. Members flagged Voted No have a recorded No vote on this bill.
Votes
| Party | Yea | Nay | Present | Not Voting |
|---|---|---|---|---|
| Unaffiliated | 7 | 0 | 0 | 0 |
| Democratic | 20 | 0 | 0 | 0 |
| Republican | 13 | 1 | 0 | 0 |
| Total | 40 | 1 | 0 | 0 |
| % of votes cast | 98% | 2% | 0% | 0% |
How each member voted (41)
| Party | Yea | Nay | Present | Not Voting |
|---|---|---|---|---|
| Democratic | 13 | 0 | 0 | 0 |
| Republican | 4 | 2 | 0 | 0 |
| Unaffiliated | 2 | 0 | 0 | 0 |
| Total | 19 | 2 | 0 | 0 |
| % of votes cast | 90% | 10% | 0% | 0% |
How each member voted (21)
| Member | Party | Vote |
|---|---|---|
| Kyle Evans Gay | — | Yea |
| Sarah McBride | — | Yea |
| Bryan Townsend | Democratic | Yea |
| Darius J. Brown | Democratic | Yea |
| David P. Sokola | Democratic | Yea |
| John "Jack" Walsh | Democratic | Yea |
| Kyra L. Hoffner | Democratic | Yea |
| Laura V. Sturgeon | Democratic | Yea |
| Marie Pinkney | Democratic | Yea |
| Nicole Poore | Democratic | Yea |
| Russell Huxtable | Democratic | Yea |
| S. Elizabeth Lockman | Democratic | Yea |
| Spiros Mantzavinos | Democratic | Yea |
| Stephanie L. Hansen | Democratic | Yea |
| Trey Paradee | Democratic | Yea |
| Brian Pettyjohn | Republican | Yea |
| Bryant L. Richardson | Republican | Nay |
| Dave G. Lawson | Republican | Yea |
| David L. Wilson | Republican | Yea |
| Eric Buckson | Republican | Nay |
| Gerald W. Hocker | Republican | Yea |
Subjects
Frequently asked questions
- What does SB 309 do?
- This Act adopts the Uniform Health-Care Decisions Act of 2023 (UHCDA 2023) to supersede the Uniform Health-Care Decisions Act of 1993, which Delaware enacted in 1996. The UHCDA 2023 was authored by the Uniform Law Commission (ULC) and was developed in a multiyear collaborative and non-partisan process to modernize and expand on the 1993 version of the act. The UHCDA 2023 maintains processes to address how health-care decisions can be made by or on behalf of individuals who lack capacity, including: (1) Allowing individuals to appoint agents to make health-care decisions for them should they become unable to make those decisions for themselves. (2) Allowing individuals to provide their health-care professionals and agents with instructions about their values and priorities regarding their health care and to indicate medical treatment they do or do not wish to receive. (3) Authorizing certain people to make health-care decisions for individuals incapable of making their own decisions, but who have not appointed agents. (4) Setting forth agent, default surrogate, and health-care professional rights and duties. The UHCDA 2023 reflects substantial changes in how health care is delivered, increases in non-traditional familial relationships and living arrangements, the proliferation of the use of electronic documents, the growing use of separate advance directives exclusively for mental health care, and other recent developments. Some updates to the Act include: (1) Removal of administrative barriers that make the creation of an advance health-care directive more difficult. (2) Addition of provisions to guide determinations of incapacity, which is important because an agent’s or default surrogate’s (surrogate’s) authority to make health-care decisions for a patient typically commences when the patient lacks capacity to make decisions. The Act modernizes the definition of capacity so that it accounts for the functional abilities of an individual and clarifies that the individual may lack capacity to make one decision but retains capacity to make other decisions. (3) Authorizing the use of advance directives exclusively for mental health care. (4) Modernizing default surrogate provisions that allow family members and certain other people close to a patient to make decisions in the event the patient lacks capacity and has not appointed a health-care agent. The new default surrogate provisions update the priority list in the 1993 Act to reflect a broader array of relationships and family structures. They also provide additional options to address disagreements among default surrogates who have equal priority. (5) Clarifying the duties and powers of surrogates. For example, to reduce the likelihood that an individual’s health-care needs will go unmet due to financial barriers, the Act authorizes a surrogate to apply for health insurance for a patient who does not have another fiduciary authorized to do so. (6) Modernizing the optional model form to be readily understandable and accessible to diverse populations. The form gives individuals the opportunity to readily share information about their values and goals for medical care. Thus, it addresses a common concern raised by health-care professionals in the context of advance planning: that instructions included in advance directives often focus exclusively on preferences for particular treatments, and do not provide health-care professionals or surrogates with the type of information about patients’ goals and values that could be used to make value-congruent decisions when novel or unexpected situations arise. The form addresses these concerns by providing options for individuals to indicate goals and values, in addition to specific treatment preferences. This Act also adopts some of the optional provisions suggested by the ULC, including that an agent or surrogate has limited ability to consent to the long-term placement of an individual in a nursing home without express authorization. Specifically, without express authorization, the agent or surrogate may not consent to the placement for more than 100 days over the individual’s contemporaneous objection unless (1) no alternative living arrangement is reasonably feasible or (2) the individual is terminally ill. The ULC suggested 100 days in recognition that the federal Medicare program covers up to 100 days of nursing home care for qualified beneficiaries. This Act does not authorize mercy killing, assisted suicide, or euthanasia. In addition to style changes throughout, this Act makes some modifications to the UHCDA 2023 that are consistent with Act and should not disrupt uniform interpretation. These modifications include: (1) Revising language to conform to Delaware court practices. (2) Providing surrogates with the authority to file insurance or benefit claims on behalf of the individual and to appeal such outcomes, in addition to the UHCDA 2023 allowance for a surrogate to apply for insurance or benefits on behalf of the individual. As under the UHCDA 2023, a surrogate does not have the duty to perform these actions and may only do so if no other fiduciary is authorized to do so. (3) Creating an additional disqualification that disallows a potential surrogate from serving if the individual has a pending Protection From Abuse petition against the potential surrogate, the individual has a Protection From Abuse order against the potential surrogate, or the potential surrogate is the subject of a civil or criminal order prohibiting or limiting contact with the individual. Section 2 of this Act adds a new Chapter 25B to the Delaware Code. Chapter 25B will contain Delaware-specific supplements to the UHCDA 2023. These Delaware-specific additions are being placed within their own chapter to promote uniform interpretation of the UHCDA 2023. Chapter 25B includes § 2502B, which relates to health-care institution authorization to petition for guardianship for an individual to whom the institution is providing care. Section 2502B reinforces the work of the Non-Acute Medical Guardianship Task Force, created by Senate Concurrent Resolution No. 30 by the 150th General Assembly. That task force’s work resulted in the current § 2519 of Title 16, which offers a process and timeline whereby health-care institutions can take steps to help obtain a guardianship for patients who no longer require acute care and can be transferred to another type of health-care setting. While § 2502B retains the ability for a health-care institution to address the discharge of long-term stay patients without an authorized decisionmaker, it modifies the powers in the current § 2519 by doing all of the following: (1) Allowing health-care institutions to petition of the appointment of a guardian in instances beyond where an individual no longer needs acute care. (2) Reiterating that the health-care institution may only petition if they believe there is no less restrictive alternative that will meet the individual’s needs. (3) Streamlining notice requirements and changing who must receive these notices so that a health-care institution does not send a notice if there is a reasonably available surrogate. If there is a reasonably available surrogate and there is a dispute between the surrogate and the health-care institution about the treatment or level of care needed by an individual, then the parties should seek judicial relief under § 2526 of the UHCDA 2023 as opposed to using the guardianship process. The new Chapter 25B also contains a provision to encourage public awareness and use of advance mental health-care directives. Sections 3 through 11 of this Act update the Delaware Code in light of the adoption of the UHCDA 2023 by updating internal citations, updating terms to match the terms used in the UHCDA 2023, and ensuring a consistent list of default surrogate decisionmakers. This Act is effective immediately and is to be implemented 1 year from the date of enactment.
- Who sponsors SB 309?
- SB 309 is sponsored by Kyle Evans Gay, Paul S. Baumbach, and Kerri Evelyn Harris (Democratic).
- What is the current status of SB 309?
- This bill has been enacted into law. Introduced May 16, 2024. Enacted.
- Where can I track SB 309?
- Track SB 309 free on One Click Politics — get push/email alerts when it moves.
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