Delaware General Assembly

CHAPTER 392

FORMERLY

SENATE BILL NO. 408

AS AMENDED BY SENATE AMENDMENT NO. 7

AN ACT TO AMEND TITLE 16 OF THE DELAWARE CODE RELATING TO HEALTH CARE DECISIONS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 25, Title 16, Delaware Code by striking the Chapter heading in its entirety and by inserting in lieu thereof the following: "Health-Care Decisions".

Section 2. Amend Chapter 25, Title 16, Delaware Code by deleting §§250I and 2502 in their entirety and by inserting in lieu thereof the following:

"PREAMBLE: Nothing in this act shall be construed to condone, authorize or approve of mercy killing; to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying; or to be a method of defining or determining a technical state of death.

§2501. Definitions

(a) 'Advance health-care directive' shall mean an individual instruction or a power of attorney for health care, or both.

(b) 'Agent' shall mean an individual designated in a power of attorney for health care to make a health-care decision for the individual granting the power.

(c) 'Artificial nutrition and hydration' means supplying food and water through a conduit, such as a tube or intravenous line where the recipient is not required to chew or swallow voluntarily, including, but not limited to, nasogastric tubes, gastrostomies, jejunostomies, and intravenous infusions. Artificial nutrition and hydration does not include assisted feeding, such as spoon or bottle feeding.

(d) 'Capacity' shall mean an individual's ability to understand the significant benefits, risks, and alternatives to proposed health care, and to make and communicate a healthcare decision.

(e) 'Declarant' shall mean a person who executes an advance health care directive.

(f) 'Guardian' shall mean a judicially appointed guardian or conservator having authority to make health-care decisions for an individual.

(g) 'Health care' shall mean any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect an individual's physical or mental condition.

(h) 'Health-care decision' shall mean a decision made by an individual or the individual's agent, surrogate or guardian, regarding the individual's health care, including:

(1) selection and discharge of health-care providers and institutions;

(1) acceptance or refusal of diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and

(2) directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care.

(i) 'Health-care institution' means an institution, facility, or agency licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business.

(j) 'Health-care provider' means an individual licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession.

(k) 'Individual instruction' means an individual's direction concerning a healthcare decision for the individual.

(I) 'Life-sustaining procedure' means:

(l) any medical procedure, treatment, or intervention that:

(i) Utilizes mechanical or other artificial means to sustain, restore, or supplant a spontaneous vital function; and

(i) Is of such a nature as to afford a patient no reasonable expectation of recovery from a terminal condition or permanent unconsciousness.

(2) procedures which can include, but are not limited to, assisted ventilation, renal dialysis, surgical procedures, blood transfusions, and the administration of drugs, antibiotics, and artificial nutrition and hydration.

(m) 'Medically ineffective treatment' means that, to a reasonable degree of medical certainty, a medical procedure will not:

(1) Prevent or reduce the deterioration of the health of an individual; or

(2) Prevent the impending death of an individual.

(n) 'Person' means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(o) 'Physician' means an individual authorized to practice medicine under Chapter 17 of Title 24.

(p) 'Power of attorney for health care' means the designation o_f an agent to make health-care decisions for the individual granting the power.

(q) 'Primary physician' or 'attending physician' shall mean a physician designated by an individual or the individual's agent, surrogate or guardian, to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility.

(r) 'Qualifying condition' means the existence of one or more of the following conditions in the patient certified in writing in the patient's medical record, by the attending physician, and by at least one other physician who, when the condition in question is 'permanently unconscious' shall be a board-certified neurologist and/or neurosurgeon:

(1) 'Terminal condition' means any disease, illness or condition sustained by any human being for which there is no reasonable medical expectation of recovery and which, as a medical probability, will result in the death of such human being regardless of the use or discontinuance of medical treatment implemented for the purpose of sustaining life or the life processes.

(2) 'Permanently unconscious' or 'permanent unconsciousness' means a medical condition that has existed for at least 4 weeks and that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term includes, without limitation, a persistent vegetative state or irreversible coma.

(s) 'Reasonably available shall mean readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's health-care needs.

(t) 'Supervising health-care provider' shall mean the primary physician or, if there is no primary physician or the primary physician is not reasonably available, the health-care provider who has undertaken primary responsibility for an individual's health care.

(u) 'Surrogate' means an adult individual or individuals who (1) have capacity; (2) are reasonably available; (3) are willing to make health care decisions, including decisions to initiate, refuse to initiate, continue or discontinue the use of a life sustaining procedure on behalf of a patient who lacks capacity; and, (4) are identified by the attending physician in accordance with the provisions of this Chapter as the person or persons who are to make those decisions in accordance with the provisions of this Chapter.

§2502. Right of Self Determination

An individual, legally adult, who is mentally competent, has the right to refuse medical or surgical treatment if such refusal is not contrary to existing public health laws."

Section 3. Amend Chapter 25, Title 16, Delaware Code by striking §§2503, 2504 and 2505 in their entirety, by renumbering §§2506, 2507, and 2508 as §§2511, 2512 and 2513 respectively and by inserting therein the following:

"§2503. ADVANCE HEALTH-CARE DIRECTIVES.

(a) Subject to the limitations of this chapter, an adult who is mentally competent may:

(1) give an individual instruction. The instruction may be limited to take effect only if a specified condition arises; and/or

(2) execute a power of attorney for health care, which may authorize the agent to make any health-care decision the principal could have made while having capacity.

(b)(1) An advance health-care directive must be:

a. In writing;

b. Signed by the declarant, or by another person in the declarant's presence and at the declarant's expressed direction;

c. Dated;

d. Signed in the presence of 2 or more adult witnesses neither of whom:

i. Is related to the declarant by blood, marriage or adoption;

ii. Is entitled to any portion of the estate of the declarant under any will or trust of the declarant or codicil thereto then existing nor, at the time of the executing of the power of attorney for health care, is entitled thereto by operation of law then existing;

iii. Has, at the time of the execution of the advance health care directive, a present or inchoate claim against any portion of the estate of the declarant;

iv. Has a direct financial responsibility for the declarant's medical care; or

v. Has a controlling interest in or is an operator or an employee of a health care institution at which the declarant is a patient or resident.

(2) Each witness to the advance health-care directive shall state in writing that he or she is not prohibited under this section from being a witness.

(c) An advance health-care directive shall become effective only upon a determination that the declarant lacks capacity, and when the advance health-care directive is to be applied to the providing, withholding or withdrawal of a life-sustaining procedure, the advance health-care directive shall become effective only upon a determination that the declarant lacks capacity and has a qualifying condition.

(d) An advance health-care directive ceases to be effective upon a determination that the declarant has recovered capacity.

(e) A determination that an individual lacks or has recovered capacity that affects an individual instruction or the authority of an agent, must be made by the primary physician or other physician(s) as specified in a written health-care directive; however, a power of attorney for health care may include a provision accommodating an individual's religious or moral beliefs. That provision may designate a person other than a physician to certify in a notarized document that the individual lacks or has recovered capacity.

(f) An agent shall make a health-care decision to treat, withdraw or withhold treatment on behalf of the patient after consultation with the attending physician or with the person other than a physician, designated pursuant to subsection (e) of this section, and in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. If the patient's instructions or wishes are not known or clearly applicable, the agent's decision shall conform as closely as possible to what the patient would have done or intended under the circumstances. To the extent that the agent knows or is able to determine, the agent's decision is to take into account, including, but not limited to, the following factors if applicable:

(i) the patient's personal, philosophical, religious and ethical values;

(ii) the patient's likelihood of regaining decision making capacity;

(iii) the patient's likelihood of death;

(iv) the treatment's burdens on and benefits to the patient; and

(v) reliable oral or written statements previously made by the patient, including but not limited to, statements made to family members, friends, health care providers or religious leaders.

If the agent is unable to determine what the patient would have done or intended under the circumstances, the agent's decision shall be made in the best interest of the patient. To the extent the agent knows and is able to determine, the agent's decision is to take into account, including but not limited to, the factors, if applicable, stated in this subsection.

(g) A health-care decision made by an agent for a principal is effective without judicial approval.

(h) Unless related to the principal by blood, marriage, or adoption, an agent may not have a controlling interest in or be an operator, or employee of a residential long-term healthcare institution at which the principal is receiving care.

(i) A written advance health-care directive may include the individual's nomination of a guardian of the person.

(j) A life-sustaining procedure may not be withheld or withdrawn from a patient known to be pregnant, so long as it is probable that the fetus will develop to be viable outside the uterus with the continued application of a life-sustaining procedure.

§2504. REVOCATION OF ADVANCE HEALTH-CARE DIRECTIVE.

(a) An individual who is mentally competent may revoke all or part of an advance health-care directive

(1) by a signed writing, or

(2) in any manner that communicates an intent to revoke done in the presence of two competent persons, one of whom is a health care provider.

(b) Any revocation that is not in writing shall be memorialized in writing and signed and dated by both witnesses. This record shall be made a part of the medical record.

(c) Any person, including but not limited to a health care provider, agent or guardian, who is informed of a revocation shall immediately communicate the fact of the revocation to the supervising health-care provider and to any health-care institution at which the patient is receiving care.

(d) A decree of annulment, divorce, dissolution of marriage, or a filing of a petition for divorce revokes a previous designation of a spouse as an agent unless otherwise specified in the decree or in a power of attorney for health care.

(e) An advance health-care directive that conflicts with an earlier advance healthcare directive revokes the earlier directive to the extent of the conflict.

(f) The initiation of emergency treatment shall be presumed to represent a suspension of an advance health-care directive while receiving such emergency treatment.

§2505. OPTIONAL FORM

The following form may, but need not, be used to create an advance health-care directive. The other sections of this Chapter govern the effect of this or any other writing used to create an advance health-care directive. An individual may complete or modify all or any part of the following form:

ADVANCE HEALTH-CARE DIRECTIVE

EXPLANATION

You have the right to give instructions about your own health care. You also have the right to name someone else to make health-care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding anatomical gifts and the designation of your primary physician. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.

Part 1 of this form is a power of attorney for health care. Part 1 lets you name another individual as agent to make health-care decisions for you if you become incapable of making your own decisions. You may also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. Unless related to you, an agent may not have a controlling interest in or be an operator, or employee of a residential long-term health-care institution at which you are receiving care.

If you do not have a qualifying condition (terminal illness/injury or permanent unconsciousness), your agent may make all health-care decisions for you except for decisions providing, withholding or withdrawing of a life sustaining procedure. Unless you limit the agent's authority, your agent will have the right to:

(a) consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition unless its a life-sustaining procedure or otherwise required by law.

(a) select or discharge health-care providers and health-care institutions;

If you have a qualifying condition, your agent may make all health-care decisions for you including but not limited to:

(c) The decisions listed in (a) and (b ).

(d) Consent or refuse consent to life sustaining procedures, such as, but not limited to, cardiopulmonary resuscitation and orders not to resuscitate.

(e) Direct the providing, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care.

Part 2 of this form lets you give specific instructions about any aspect of your health care. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, including the provision of artificial nutrition and hydration as well as the provision of pain relief. Space is also provided for you to add to the choices you have made or for you to write out any additional instructions for other than end of life decisions.

Part 3 of this form lets you express an intention to donate your bodily organs and tissues following your death.

Part 4 of this form lets you designate a physician to have primary responsibility for your health care.

After completing this form, sign and date the form at the end. It is required that two other individuals sign as witnesses. Give a copy of the signed and completed form to your physician, to any other health-care providers you may have, to any health-care institution at which you are receiving care, and to any health-care agents you have named. You should talk to the person you have named as agent to make sure that he or she understands your wishes and is willing to take the responsibility.

You have the right to revoke this advance health-care directive or replace this form at any time.

PART 1: POWER OF ATTORNEY FOR HEALTH CARE

(1) DESIGNATION OF AGENT: I designate the following individual as my agent to make health-care decisions for me:

(name of individual you choose as agent)

(address) (city) (state) (zip code)

(home phone) (work phone)

OPTIONAL: If I revoke my agent's authority or if my agent is not willing, able, or reasonably available to make a health-care decision for me, I designate as my first alternate agent:

(name of Individual you choose as first alternate agent)

(address) (city) (state) (zip code)

(home phone) (work phone)

OPTIONAL: If I revoke the authority of my agent and first alternate agent or if neither is willing, able, or reasonably available to make a health-care decision for me, I designate as my second alternate agent:

(name of individual you choose as second alternate agent)

(address) (city) (state) (zip code)

(home phone) (work phone)

(2) AGENTS AUTHORITY: If I am not in a qualifying condition my agent is authorized to make all health-care decisions for me, except decisions about life-sustaining procedures and as I state here; and if I am in a qualifying condition, my agent is authorized to make all health-care decisions for me, except as I state here:

(Add additional sheets if necessary.)

(3) WHEN AGENTS AUTHORITY BECOMES EFFECTIVE: My agent's authority becomes effective when my primary physician determines I lack the capacity to make my own health-care decisions. As to decisions concerning the providing, withholding and withdrawal of life-sustaining procedures my agent's authority becomes effective when my primary physician determines I lack the capacity to make my own health-care decisions and my primary physician and another physician determine I am in a terminal condition or permanently unconscious.

(4) AGENTS OBLIGATION: My agent shall make health-care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health-care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.

(5) NOMINATION OF GUARDIAN: If a guardian of my person needs to be appointed for me by a court, (please check one):

[ I nominate the agent(s) whom I named in this form in the order designated

to act as guardian.

1 I nominate the following to be guardian in the order designated:

[ ] I do not nominate anyone to be guardian.

PART 2: INSTRUCTIONS FOR HEALTH CARE

PART 3: ANATOMICAL GIFTS AT DEATH

(OPTIONAL)

(8) I am mentally competent and 18 years or more of age.

I hereby make this anatomical gift to take effect upon my death. The marks in the appropriate squares and words filled into the blanks below indicate my desires.

I give: [ ] my body; [ any needed organs or parts; [ ] the following organs or parts

To the following person or institutions [ ] the physician in attendance at my death; [ ] the hospital in which I die; [ ] the following named physician, hospital, storage

bank or other medical institution ; [ ] the following individual for

treatment ; for the following purposes: [ ] any purpose

authorized by law; [ ] transplantation; [ ] therapy; [ ] research; [ ] medical education.

Choice Not To Prolong Life

Part 4: PRIMARY PHYSICIAN

(OPTIONAL)

9. I designate the following physician as my primary physician:

(phone)

OPTIONAL: If the physician I have designated above is not willing, able or reasonably available to act as my primary physician, I designate the following physician as my primary physician:

(Phone)

Primary Physician shall mean a physician designated by an individual or the individual's agent or guardian, to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility.

(10) EFFECT OF COPY: A copy of this form has the same effect as the original.

(11) SIGNATURE: Sign and date the form here: I understand the purpose and effect of this document.

A guardian shall comply with the adult disabled person's individual instructions and may not revoke the adult disabled person's advance health-care directive unless the appointing court expressly so authorizes. Nothing is this Chapter shall limit the jurisdiction of the Court of Chancery over the person and property of a disabled person.

§2507. SURROGATES

(1) A surrogate may make a health care decision to treat, withdraw or withhold treatment for an adult patient if the patient has been determined by the attending physician to lack capacity and there is no agent or guardian or if the directive does not address the specific issue. This determination shall be confirmed in writing in the patient's medical record by the attending physician. Without this determination and confirmation the patient is presumed to have capacity and may give or revoke an advance health care directive or disqualify a surrogate.

(2)(a) A mentally competent patient may designate any individual to act as a surrogate by personally informing the supervising health-care provider in the presence of a witness. The designated surrogate may not act as a witness. The designation of the surrogate shall be confirmed in writing in the patient's medical record by the supervising health-care provider and signed by the witness.

(b) In the absence of a designation, or if the designee is not reasonably available, any member of the following classes of the patient's family who is reasonably available, in the descending order of priority, may act, when permitted by this section, as a surrogate and shall be recognized as such by the supervising health-care provider:

1. The spouse, unless a petition for divorce has been filed, or unless the patient has filed a petition or complaint alleging abuse, as defined in 10 Del. C. §1041(1), of the patient by the spouse;

2. An adult child;

3. A parent;

4. An adult brother or sister; or,

5. An adult grandchild.

(c) If none of the individuals eligible to act as a surrogate under subsection (b) of this section is reasonably available, an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values, and who is reasonably available may make health care decisions to treat, withdraw or withhold treatment on behalf of the patient if appointed as a guardian for that purpose by the Court of Chancery.

(d) A supervising health-care provider may require an individual claiming the right to act as a surrogate for a patient to provide a written declaration under the penalty of perjury stating facts and circumstances sufficient to establish the claimed authority.

(e) A mentally competent patient may at any time disqualify a member of his or her family from acting as his or her surrogate by a signed writing or by personally informing the health-care provider of the disqualification.

(f) A surrogate may make a decision to provide, withhold or withdraw a life-sustaining procedure, if the patient has a qualifying condition documented in writing with its nature and cause, if known, in the patient's medical record by the attending physician.

(g) A surrogate's decision on behalf of the patient to treat, withdraw or withhold treatment shall be made according to the following paragraphs and otherwise meet the requirements of this Chapter:

1. Decisions shall be made in consultation with the attending physician.

2. (1) The surrogate shall make a health-care decision to treat, withdraw or withhold treatment in accordance with the patient's individual instructions, if any, and other wishes to the extent known by the surrogate.

(2) If the patient's instructions or wishes are not known or clearly applicable, the surrogate's decision shall conform as closely as possible to what the patient would have done or intended under the circumstances. To the extent the surrogate knows or is able to determine, the surrogate's decision is to take into account, including but not limited to, the following factors if applicable:

(i) the patient's personal, philosophical, religious and ethical values,

(ii) the patient's likelihood of regaining decision making capacity,

(iii) the patient's likelihood of death,

(iv) the treatment's burdens on and benefits to the patient,

(v) reliable oral or written statements previously made by the patient, including, but not limited to, statements made to family members, friends, health care providers or religious leaders.

(3) If the surrogate is unable to determine what the patient would have done or intended under the circumstances, the surrogate's decision shall be made in the best interest of the patient. To the extent the surrogate knows and is able to determine, the surrogate's decision is to take into account, including but not limited to, the factors, if applicable, stated in subsection (h)2(2) of this section.

(i) In the event an individual specified in subsection (b) of this section claims that he or she has not been recognized or consulted as a surrogate, or if persons with equal decision making priority under subsection (b) of this section cannot agree who shall be a surrogate or disagree about a health-care decision, and a patient who lacks capacity is receiving care in a health-care institution, the attending physician or an individual specified in subsection (b) of this section may refer the case to an appropriate committee of the health-care institution for a recommendation in compliance with the provisions of this Chapter, and the attending physician may act in accordance with the recommendation of the committee or transfer the patient in accordance with the provisions of Section 2508 (g) of this Chapter. A physician who acts in accordance with the recommendation of the committee is not subject to civil or criminal liability or to discipline for unprofessional conduct for any claim based on lack of consent or authorization for the action.

§2508. OBLIGATIONS OF HEALTH-CARE PROVIDER.

(a) Before implementing a health-care decision made for a patient, a supervising healthcare provider, if possible, shall promptly communicate to the patient the decision made and the identity of the person making the decision. The decision of an agent or surrogate does not apply if the patient objects to the decision to remove life-sustaining treatment, providing that the objection is (I) by a signed writing or (2) in any manner that communicates in the presence of two competent persons, one of whom is a physician.

(b) A supervising health-care provider who knows of the existence of an advance health-care directive or a revocation of an advance health-care directive shall promptly record its existence in the patient's health-care record and, if it is in writing, shall request a copy and if it is not in writing, shall request a copy of the witness statement, and shall arrange for its maintenance in the health-care record.

(c) A primary physician who makes or is informed of a determination that a patient lacks or has recovered capacity, or that another condition exists which affects an individual instruction or the authority of an agent, surrogate or guardian, shall promptly record the determination in the patient's health-care record and communicate the determination to the patient, if possible, and to any person then authorized to make health-care decisions for the patient.

(d) Except as provided in subsections (e) and (f) of this section, a health-care provider or institution providing care to a patient shall:

(1) comply with an individual instruction of the patient and with a reasonable interpretation of that instruction made by a person then authorized to make health-care decisions for the patient; and

(2) in the absence of an individual instruction comply with a health-care decision for the patient made by a person then authorized to make health-care decisions for the patient to the extent the agent or surrogate is permitted by this Chapter.

(e) A health-care provider may decline to comply with an individual instruction or healthcare decision for reasons of conscience. A health-care institution may decline to comply with an individual instruction or health-care decision if the instruction or decision is contrary to a written policy of the institution which is based on reasons of conscience and if the policy was communicated to the patient or to a person then authorized to make health-care decisions for the patient.

(f) A health-care provider or institution may decline to comply with an individual instruction or health-care decision that requires medically ineffective treatment or health care contrary to generally accepted health-care standards applicable to the health-care provider or institution.

(g) A health-care provider or institution that declines to comply with an individual instruction or health-care decision shall:

(1) promptly so inform the patient, if possible, and any person then authorized to make health-care decisions for the patient;

(2) provide continuing care, including continuing life sustaining care, to the patient until a transfer can be effected; and

(3) not impede the transfer of the patient to another health-care provider or institution identified by the patient, his or her agent or surrogate.

§2509 HEALTH-CARE INFORMATION.

Unless otherwise specified in an advance health-care directive, a person then authorized to make health-care decisions for a patient has the same rights as the patient to request, receive, examine, copy and consent to the disclosure of medical or any other health-care information.

§2510. IMMUNITIES.

(a) A health-care provider or institution acting in good faith and in accordance with generally accepted health-care standards applicable to the health-care provider or institution is not subject to civil or criminal liability or to discipline for unprofessional conduct for:

(1) complying with a health-care decision of a person apparently having authority to make a health-care decision for a patient, including a decision to withhold or withdraw health care;

(2) declining to comply with a health-care decision of a person based on a belief that the person then lacked authority;

(2) complying with an advance health-care directive and assuming that the directive was valid when made and has not been revoked or terminated;

(3) providing life-sustaining treatment in an emergency situation when the existence of a health care directive is unknown; or

(5) declining to comply with a health care decision or advance health-care directive because the instruction is contrary to the conscience or good faith medical judgment of the health care provider or the written policies of the institution.

(b) An individual acting as agent or surrogate under this Chapter is not subject to civil or criminal liability or to discipline for unprofessional conduct for health-care decisions made in good faith."

Section 4. Amend newly designated §2511, Title 16. Delaware Code by deleting subsection (b) in its entirety and by deleting the phrases "a maintenance medical treatment", "a declaration", any declaration", "Such declaration" and "the declaration" as they appear therein and by inserting in lieu thereof the phrases "health care", "an advance health-care directive", any advance health-care directive" "Such advance-care directive", and "the advance health-care directive" respectively.

Section 5. Amend newly designated §2512, Title 16, Delaware Code by deleting the phrases "a declaration" and "maintenance medical treatment" wherever they appear therein, by inserting in lieu thereof the phrases "an advance health-care directive" and "health care" respectively, and by adding at the end of the last sentence thereof the phrase "except as provided in §2508 of this Chapter."

Section 6. Amend newly designated §2513(a), Title 16, Delaware Code by deleting the last sentence thereof in its entirety.

Section 7. Amend Chapter 25, Title 16, Delaware Code by adding the following: "

§2513. CAPACITY.

(a) This Chapter does not affect the right of an individual to make health-care decisions while having capacity to do so.

(b) An individual is presumed to have capacity to make a health-care decision, and to give or revoke an advance health-care directive.

§2514. ACCOMMODATION.

Notwithstanding any provision of this chapter, an individual who elects to have treatment by spiritual means in lieu of medical or surgical treatment shall not be compelled to submit to medical or surgical treatment.

§2515. EFFECT OF COPY.

A copy of an advance health-care directive or revocation of an advance healthcare directive, has the same effect as the original.

§2516. RECOGNITION OF ADVANCE DIRECTIVES EXECUTED IN OTHER STATES.

An advance directive or similar health-care declaration validly executed under the laws of another state in compliance with the laws of that state or of this state is valid for purposes of and subject to the limitations of, this Chapter.

§2517. EFFECT ON PRIOR DECLARATIONS AND DIRECTIVES.

Nothing in this Act shall be construed to modify or affect the terms of any declaration, appointment of agent or durable power of attorney, validly executed prior to the effective date of this Act, which grants the authority for medical treatment or directs the withholding or withdrawal of medical treatment, except that a prior declaration shall not be interpreted to allow the withdrawal or withholding of artificial nutrition or hydration unless that desire is specifically stated in that directive. If withdrawal or withholding of artificial nutrition or hydration is not specifically addressed in a prior declaration, a health care provider shall comply with a decision regarding withdrawal or withholding of artificial nutrition or hydration for the patient made by a person then authorized to make health-care decisions for the patient to the extent the agent or surrogate is permitted by this Chapter."

Section 8. Severability

If any provision of this Act or the application thereof to any person, thing or circumstances is held invalid, such invalidity shall not affect the provisions or application of this Act that can be given effect without the invalid provisions or application, and to this end the provisions of this Act are declared to be severable.

Approved June 26, 1996