Two witnesses are required — and none of them can be family, an heir, or staff at the facility where you are a patient. That is the rule that quietly invalidates directives signed at the bedside.
Delaware’s advance health care directive does two jobs in one form, under 16 Del. C. ch. 25.
| Part | What it does |
|---|---|
| Part I — instructions | Your own directions about medical and surgical treatment, including end-of-life care. These take effect only if you lose the capacity to accept or refuse treatment yourself. |
| Part II — health care agent | Appoints a person who may make any health care decision you could have made yourself, and an alternate if they cannot act. |
This is not your financial power of attorney
A financial power of attorney gives your agent no say over medical decisions, and this document gives yours no say over your money. They are separate documents under separate chapters of the Delaware Code, with different witness rules. See the power of attorney page.
A Delaware advance health care directive must be signed in the presence of two or more adult witnesses. A person is disqualified from witnessing if they:
Each witness also has to state in writing that they are not prohibited from being a witness. And the form itself is explicit that you may not change the qualifications for witnesses or agents, even if you cross out the wording.
Look at that list against who is actually present when these documents get signed. A patient in hospital is usually surrounded by their spouse, their children, and the nursing staff.
Every one of those people is disqualified. The family are relatives and probably heirs. The nurses are employees of the institution where the patient is. A directive signed by two of them is a directive with a defect in it, discovered later, when it matters most and cannot be fixed.
This is the single most common reason people call us for a bedside signing. We bring two qualifying independent witnesses — unrelated to you, with no interest in your estate, and not employed by the facility. Tell us it is a hospital or care-home appointment when you book and we will arrange it.
We would rather be straight with you than oversell: Delaware does not legally require an advance health care directive to be notarised. The witnesses are the legal requirement.
The State’s own form still recommends a notary, and gives the reason plainly. Signing before a notary public is advisable because the notary, as well as your witnesses, can testify as to your competence when you signed — if your competence later becomes an issue. And notaries, who are registered with the State, are usually far easier to locate years afterwards than two witnesses whose surnames nobody wrote down.
Put simply
The witnesses make the directive valid. The notary is what makes it hard to challenge. If this document is ever going to be argued about, it will be argued about at exactly the moment you cannot speak for yourself.
Your treatment instructions do not switch on the moment you sign. They apply only if you lose the capacity to accept or refuse treatment, and a direction not to prolong your life applies only in a qualifying condition, which the statute defines two ways:
| Qualifying condition | Definition used by the form |
|---|---|
| Terminal condition | An incurable condition from which there is no reasonable medical expectation of recovery and which will cause death regardless of life-sustaining treatment. |
| Permanent unconsciousness | A condition that has existed at least four weeks and has been diagnosed with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. Includes a persistent vegetative state or irreversible coma. |
Within either, you can direct separately whether you want artificial nutrition, hydration, cardiopulmonary resuscitation and mechanical respiration used or not used. And whichever you choose, the form directs that you be given all medically appropriate care to keep you comfortable and relieve pain.
The State’s form is candid about its own limits. It does not give you the chance to:
For any of those, the form itself says to talk to an attorney — and where something in it conflicts with your religious beliefs, to contact your clergy. We would say the same. We are not attorneys. We cannot draft this document, tell you whom to appoint as your agent, or advise on what treatment to accept or refuse.
The current official Delaware form is published by the Department of Health and Social Services. We always work from the current version, and we bring printed copies to the appointment so you do not need to print anything.
Fill it in completely rather than leaving decisions blank. Where you do not want a particular decision, the instructions say to strike the wording through rather than leave the space empty.
We are not attorneys, and we say so on every page. But telling you to “see a lawyer” and leaving it there is not much help, so there are two routes we can actually put in front of you.
And for USCIS paperwork we bring in a paralegal or an attorney to do the legal part, rather than turning you away. The notarial act stays ours; the legal work goes to someone qualified to do it. We will tell you which is which, and what each costs, before anything starts.
Disclosure: we are a LegalShield affiliate and receive a commission if you enrol through us. We will say so again at the time.
We come to homes, hospitals, rehabilitation units and care facilities anywhere in Delaware, including evenings and weekends. The notarial act is capped by statute at $5.00; travel and independent witnesses are quoted separately and itemised before we set out.
One thing worth knowing before you call about a bedside appointment: the signer has to be alert enough to understand the document and to ask for it themselves. A notary must decline if that is not the case. It feels unhelpful in the moment and it is the reason the document stands up afterwards.
Dover desk 302-505-1459
Millsboro office 302-316-3926
notary@delawaremobilesignings.com
Related: download the forms · Delaware power of attorney · estate planning document signings · fees and service terms
